High Court
Case Details
WP(C) 5198/2005 BEFORE HON’BLE MR.JUSTICE N.KOTISWAR SINGH Heard Mr. Y.K,Phukan, learned counsel for the petitioner and Ms. U. Baruah, lear ned counsel appearing for the Assam State Transport Corporation. 2. In the present writ petition, the petitioner has assailed the or der for compulsory retirement passed by the Managing Director, Assam State Trans port Corporation (for short ’Corporation’) on 18.4.05, by stating that the petit ioner was guilty of negligence in discharge of duties as he had failed to take p roper steps for supervision and immediate action to prevent misappropriation of fund of the Corporation by other employees. 3. follows.
Legal Reasoning
Brief facts of the case as may be relevant may be stated are as While the petitioner was serving as Divisional Superintendent un der the Assam State Transport Corporation at Jorhat a departmental proceeding wa s initiated against him on the following charges:-
Legal Reasoning
(cid:28)Charge No.1: Negligence in discharge of duties causing mis- app ropriation of ASTC revenue amounting to Rs.4,23,448.80 by Sri S.N.Hazarika (U/s) SS and Sri Sashi Bora, Cashier, ASTC, Jorhat (U/s) and misappropriation of ASTC revenue amounting to Rs. 2,03,529.99 by one Sri Amanuddin Bora, SS,ASTC (Sivasa gar) (U/s) and Sri Paresh Changkakoti, Cashier at Sibsagar Station (U/s) Charge No.2: Breach of trust. Charge No.3: Gross misconduct.\ Accordingly, a departmental inquiry was held against the petitio ner. The Inquiry Officer held the charges against the petitioner to be proved. T hereafter a show cause notice was issued to the petitioner to which the petition er submitted his reply. The respondent authority being not satisfied with the re ply to the show cause, issued the order of penalty dated 25.1.99 removing the pe titioner from service. 4. Being aggrieved by the aforesaid order dated 25.1.99 in removing the petitioner from service, the petitioner preferred a writ petition before th is Court being, WP(C) No.4460/99 which was disposed of on 13.12.04 by this Court by holding, inter alia, that
Decision
(cid:28)6 & &..There is no charge against the petitioner nor there is any evidence or fin ding recorded that the petitioner was in any way in league with the persons who had misappropriated the money or that the petitioner is guilty of any conscious act with regard to misappropriation of the amounts in question. If misappropriat ion was occasioned by negligence of the petitioner, it is difficult to apprecia te as to how the charge of ’breach of trust’ and ’gross misconduct’ can be susta ined. Both ’breach of trust’ and ’gross misconduct’ would require a positive sta te of mind and conscious action. A negligent action cannot be an action amountin g to breach of trust. Similarly, negligence in performance of duties is a failur e to reach the expected standard of performance. Negligence in performances of duties may be a personal failure of the officer concerned but that would not amo unt to misconduct much less, gross misconduct. Misconduct is a conscious deviati on from the permissible code of conduct. The disciplinary authority by leveling the charge of negligence in performance of duties against the petitioner had re ndered if impossible for the other two charges, i.e. breach of trust and gross m isconduct to be established. Yet the enquiry officer has found the writ petition er to be guilty of all 3 charges and it is on acceptances of the said position, i.e. that the writ petitioner is guilty of all the three charges levelled that t he punishment of removal from service has been imposed by the disciplinary autho rity. What would have been the punishment had the writ petitioner been found gui lty of the charge of negligence alone would, therefore, a matter of speculation and to any speculative exercise, what the facts of the case would require is a r emand of the matter to the disciplinary authority to re-decide the question of p unishment by taking Charge No.1 along to be proved. As the matter is being remit ted to the disciplinary authority to decide on the quantum of punishment, the fu rther punishment imposed on the petitioner, i.e. the recovery of 1/3rd of the amount misappropriated shall also be decided by the disciplinary authority in t he light of the fact that it was not even the case of the disciplinary authority that the petitioner had misappropriated any amount. 7. As the quantum of punishment to be imposed is primarily the prerogative of the employer and as the matter will now have to be re-decided, this Court ref rains from causing any interference with the punishment awarded but directs that the disciplinary authority shall decide the question of punishment in the light of the observations contained herein within a period of two months from the dat e of receipt of this order and in the event any altered punishment is imposed on the petitioner, the earlier punishment of removal from service shall stand supe rseded. (cid:29) 5. Thereafter, the authorities as directed by this Court to decide on the quantum of punishment, issued the impugned order dated 18.04.2005 by imp osing the penalty of compulsory retirement of the petitioner from service. Relev ant portion of the said impugned order dated 18.04.2004 are as follows:- (cid:28)On careful examination it is found that while Shri H.P.Gogoi was working as Div isional Supdt.at Jorhat failed to perform the duties assigned to him and for his lack of proper supervision and negligence in discharge of his duties a huge am ount of the Corporation revenue amounting to Rs. 4,23,448.80 misappropriated by Shri S.N.Hazarika, Ex-Station Supdt, and Shri Sashi Bora, Ex Cashier, ASTC, Jorh at and an amount of Rs. 3,03,529.99 misappropriate by Shri Amanuddin Bora, Ex- Station Supdt, and Shri Paresh Changkakoti, Ex-Cashier at Sibsagar ASTC Station, Shri H.P.Gpgoi by his negligence in discharge of his duties and failure to take proper supervision and immediate action had facilitated misappropriation of the said huge amount of the Corporation. Hence, Shri H.P. Gogoi is not fit to held the responsible post of Divisional Supdt and the management has lost faith on him. Considering the fact and circumstances of the case, the disciplinary author ity came to the conclusion that Shri H.P.Gogoi should not be allowed to continu e in his service for the interest of the Corporation and he should be compulsory retired from his service. (cid:29) The aforesaid order of compulsory retirement passed by the autho rities on 18.4.05 has been challenged by the petitioner in the present on the gr ounds, inter alia, that one Sri S.N.Hazarika, Ex-Station Superintendent,ASTC, Jo rhat against whom the charge of gross negligence in discharge of duties and resp onsibilities in preventing misappropriation of huge amount of the Corporation re venue was held proved, was imposed the penalty of stoppage of annual increment f or 3 years with cumulative effect, by reinstating him in service though he was a lso removed earlier on similar charges. According to the petitioner, the said Sri S.N.Hazarika was found to be responsible for the misappropriation of the Corporation’s fund amounting to Rs. 4,23,448.80. However, the disciplinary authority though holding that he had not personally benefited from the misappropriated amount, held him guilty of gross negligence on his part, thus not warranting severe punishment. According ly, he was reinstated to service and awarded the lesser penalty of mere stoppage of annual increment by reinstating in service. According to the petitioner, the authorities have adopted a diff erent yardstick while imposing penalty in respect of the petitioner, even though the petitioner is also similarly situated. The petitioner was not charged nor h eld guilty for misappropriation. The petitioner has been charged of and held for lack of supervision and negligence as in the case of the said S.N. Hazarika. Ye t the petitioner has been visited with a harsher penalty of compulsory retiremen t. According to the petitioner, this Court had also recorded a finding against the petitioner of mere negligence for performance of duty. Thus, according to th e petitioner, the impugned order of compulsory retirement is discriminatory and arbitrary and hence liable to be interfered with. 7. Perusal of the impugned order, reveals that the authorities whil e issuing the impugned order had proceeded on the footing that a huge amount of the Corporation revenue amounting to Rs. 4,23,448.80/- were misappropriated by S.N.Hazarika Ex-Station Supdt. And Sri Sashi Bora, Ex-Cashier, ASTC, Jorhat. Th us, this reference is contrary to the order No.182 dated 26.3.1998 (Annexure 18) by which it was held that there is no material evidence that Sri S.N. Hazarika had personally benefited from the misappropriated amount and there is only gross negligence and accordingly, the said S.N. Hazarika was reinstated in service a nd was imposed the penalty of stoppage of annual increment for 3 years with cumu lative effect. ry authority had considered certain material which was not correct. In other words, while issuing the impugned order, the disciplina Further, this Court while allowing WP(C) No.4460 of 1999 filed b y the petitioner had also observed that negligence in performance may be a perso nal failure of the officer concerned but that would not amount to misconduct, m uch less, gross misconduct. Therefore, if the offending act of the petitioner do es not amount to gross misconduct, it is difficult to understand how the penalty of compulsory retirement could be imposed. 8. This Court while exercising the power of judicial review is not concerned with the decision per-se so arrived by the authority concerned, but w ith the decision making process. In other words, if this Court finds that while coming to a particular conclusion and in taking certain decision by the authorit y, if it is found that certain irrelevant materials had been taken into consider ation and certain relevant materials had not been taken into account, such decis ion may be liable to be interfered with by following the Wednesbury principles. In the present case as discussed above, the authority while imposing penalty of compulsory retirement had taken into consideration certain fact which was not correct i.e. the fact that one Sri S.N.Hazarika was earlier charged of misapprop riation of certain amount but subsequently not held for misappropriation but for negligence and lack of supervision. Having found the said Hazarika to be inn ocent of the said charge of misappropriation, the disciplinary authority could n ot have taken into consideration the aforesaid material at the time of passing t he impugned order. As evident from the order dated 26.03.1998 by which was the order of penalty passed in respect of the aforesaid S.N.Hazarika, the said Hazar ika was also found to be negligent in preventing misappropriation of funds by th e other employees, as such he was reinstated to service and lesser penalty of st oppage of increment was imposed. Further, this Court had already held in WP(C) N o. 4460 of 1999 held that it could not be said that there was gross misconduct o n the part of the petitioner. The disciplinary authority did not consider this a spect also. Accordingly, this Court is of the view that impugned order of co mpulsory retirement dated 18.04.2005 needs to be re-considered by the disciplina ry authority in the light of the observation made above. 9. In view of the reasons as discussed above, this writ petition i s disposed of with the direction to the disciplinary authority to reconsider the imposition of the penalty of the compulsory retirement of the petitioner from service after taking into consideration the fact that Sri S.N.Hazarika was not h eld guilty of misappropriation of funds but only on the charge of negligence an d had already been reinstated in service by imposing imposed a minor penalty of stoppage of annual increment for 3 years and of the observation of this Cour t that it could not be said that there was gross misconduct on the part of the p etitioner. months from the date of receipt of a certified copy of this order. The whole exercise shall be completed within a period of 2(two) The learned counsel for the respondents has submitted that the p etitioner had already attained the age of superannuation before passing of the i mpugned order and, therefore, the question of reinstatement of the petitioner to the service does not arise. This aspect may be taken into consideration by the authorities while reconsidering the quantum of punishment as it would have a bea ring on the pensionary benefits of the petitioner. JUDGE samir