High Court · 2012

It has been reported against Shri P.K. Das, RI. No. 002 that while he wa s serving as Assistant in Purchase Department of Nagaon Paper Mill he did not de liver the Lubricants (SMG20W40) at Stores which were collected from IOCL, Guwaha ti through five Nos. of Invoices duly received and signed by him as shown below: (cid:28)CHARGE SHEET S/N Description Invoice No. Date Barrel (Qty) Amount/Rs. 1 2 3 4 5

2.00 SMG20W 40 SMG20W 40 SMG20W 40 SMG20W 40 SMG20W 40 118244 220162 110027 110046 110057

03.04.03 11.04.03 09.05.03 26.05.03 16.06.03 03 03 03 03 04 Rs.27620.00 Rs.27620.00 Rs.27621.00 Rs.27622.00 Rs.36829.00 Total 16 Rs.14731 As a result the Corporation have suffered a loss of 16 barrels of Lubricants (SM G20W 40) amounting to Rs. 1,47,312.00. The aforesaid alleged acts of Shri Das, if proved, would constitute acts of misc onduct in terms of Section 28(6), 28(15) & 28(51) of Certified Standing Orders a pplicable to Shri Das which read as under and would render him liable to discipl inary action. Clause 28 (6) : & & & & &.. dishonesty, deception or corrupt practice in connection with the Company’s business or property or work or misapp ropriation of the Company’s funds & & &. or otherwise. Clause 28(15): & & & & & &. indulging in any other corrupt practice. Clause 28(25): .. wilful & or loss of Company’s goods or other property. Clause 28(51): Deliberately giving false information prejudicial to the interest or reputation of the Company. In view of the above, Shri Das is hereby advised to submit his written e xplanation which 10(ten) days of receipt of this letter as to why disciplinary a ction should not be taken against him for his aforesaid alleged acts of miscondu ct in case we do not receive from Shri Das within the stipulated period, it will be presumed that Shri Das has nothing to explain in this regard and in that eve nt necessary disciplinary action as per provisions of the Certified Standing ord ers of the Corporation will be initiated. (cid:29)

5. Responding to the aforesaid charge sheet, the petitioner submitted his w ritten statement of defence on 19.04.2004 denying the allegations with the plea that the challans and products were handed over to him by the IOC officials and in turn he sued to hand over the challans to the Truck drivers. He took a furthe r plea that when the Trucks with the materials arrived at the gate of the Corpor ation Office at Jagiroad at around 6/7 p.m. at Jagiraod, the CISF personnel did not allow the Trucks to enter into the office complex and thus the Trucks remain ed outside the office gate throughout the night till next morning. On the other hand, the drivers had left for their quarters. Thus the plea taken was that ther e might be theft of materials/goods from the Trucks at night for which he was no t responsible.

6. In due course, departmental enquiries were conducted against the petit ioner in respect of both the charge sheets. In reference to the second charge sheet, the petitioner was directed to appear before the enquiry officer on 26.06 .2004 alongwith his witnesses and co-workman in case the petitioner was desirous of taking their assistance in the enquiry. The enquiry was held on different da tes and thereafter written briefs had been submitted by both the parties, i.e. t he petitioner and the disciplinary authority.

7. On conclusion of the enquiry, the petitioner was served with a copy of t he enquiry report advising him to submit his written comments on the same. A cop y of the enquiry dated 24.11.2004 had been annexed to the report as Annexure-XI. By the said enquiry report, the charge against the petitioner was held to have been established. The petitioner by his Annexure-XII representation dated 15.12. 2004 responded to the enquiry report stating that the enquiry officer failed to appreciate the evidence in holding that the charge against the petitioner was e stablished. Thereafter the disciplinary authority passed the impugned Annexure-X III order dated 04.02.2005 removing him from the service stipulating that such r emoval would not be a disqualification for further employment. Alongwith the ord er the petitioner was paid one month salary amounting to Rs. 9826/-.

8. Being aggrieved by the aforesaid order of removal from service, the peti tioner preferred a departmental appeal (Annexure-XIV) which was also rejected by Annexure-XV order dated 01.04.2005. Thereafter he filed the writ petition.

9. By an additional affidavit the petitioner has brought on record the judg ement dated 29.05.2012 passed by the learned Civil Judge, Morigaon in Money Suit No. 29/2005 by which the suit that was instituted by the respondent Corporation against the petitioner for recovery of the amount defrauded by the petitioner, has been dismissed. The suit was filed by the Corporation against the petitioner for recovery of an amount of Rs. 26,14,376.68 alongwith future interest on the said amount. According to the petitioner, the suit having been dismissed establi shing that the petitioner is no way responsible for misappropriation of the said amount relatable to the charge in respect of which he has been removed from ser vice, the impugned order of removal followed by the appellate order referred to above, are liable to be set aside and quashed.

10. The respondent Corporation has filed its affidavit in opposition denying the contentions raised in the writ petition. It has been stated in the said aff idavit that the departmental enquiry having been conducted as per the establishe d procedure and the petitioner having been provided with all reasonable opportun ities of being heard, there is no question of any interference with the impugned orders. The respondents have also produced the departmental proceeding file. Du ring the course of hearing, Mr. J. Roy, learned counsel representing the Corpora tion submitted that even in respect of the first charge sheet referred to above, enquiry was concluded holding that the petitioner guilty of the charges, but be fore any penalty could be imposed in respect of the said charge sheet, the petit ioner was removed from service on the basis of the enquiry conducted in respect of the second charge sheet.

11. I have heard Mr. S.K. Medhi, learned counsel for the petitioner as well as Mr. J. Roy, learned counsel representing the respondent Corporation. I have a lso perused the entire materials on record including the departmental proceeding file.

12. Mr. Medhi, learned counsel for the petitioner referring to the decisions of the Apex Court reported in (1983) 2 SCC 442 (Bhagat Ram vs. State of Himacha l Pradesh and ors.) and (2010) 2 SCC 772 (State of Uttar Pradesh and ors. Saroj Kumar Sinha), submitted that the petitioner having not been provided with the co pies of the documents on the basis of which the charge was levelled against him, was deprived of proper defence. He also submitted that the disciplinary author ity ought to have apprised the petitioner of his right of defence assistance in the enquiry and the same having not been done, the petitioner was handicapped in appropriately defending his case in the enquiry. According to him, the petition er being not in any way responsible for the loss of the materials and there bein g no proof of misappropriation of any amount by the petitioner, the impugned ord ers are liable to be interfered with.

13. Countering the above argument, Mr. J. Roy, learned counsel for the respo ndent Corporation, submitted that the enquiry having been conducted in a fair an d transparent manner in full participation of the petitioner, there is no questi on of interference of the impugned orders. Referring to the departmental proceed ing file, he submitted that it is too late on the day to allege the denial of r easonable opportunity of being heard inasmuch as the petitioner was given excess to the documents and also the opportunity to engage his defence assistant. He h as also placed reliance on the two decisions of the Apex Court reported in (1) ( 2008) 8 SCC 92 (State Bank of India vs. S.N. Goyal) and (2) (2006) 2 SCC 255 (T. N.C.S Corporation Ltd. and ors. vs. K. Meerabai).

14. As noted above, the enquiry in respect of the first charge sheet dated 0 7.08.2003 has also been concluded in which also the charge has been established against the petitioner. However, before any penalty could be imposed on that ba sis, the second enquiry stood concluded against the petitioner followed by impos ition of the penalty of removal from service by the impugned order.

15. Learned counsel for the respondent Corporation has also produced the dep artmental proceeding file in respect of the first charge sheet on perusal of whi ch it appears that as per the report submitted by the enquiry officer, it was fo und that the charges levelled against the petitioner stood established. However , before any action could be taken on the basis of the said report, the service of the petitioner came to be terminated by the impugned order of removal pursuan t to the enquiry that was conducted in respect of the second charge sheet.

16. Be that has it may and without being guided by the said fact of establis hing the charge against the petitioner levelled by the first charge sheet, I hav e considered the pleas raised by the petitioner towards assailing the impugned o rders pertaining to the second charge sheet. On perusal of the enquiry proceedin g file relating to the same, it is found that the enquiry was conducted on diffe rent dates in which the petitioner duly participated. During the course of regul ar hearing on 13.09.2004, the petitioner was asked by the enquiry officer as to whether he would like to produce any witnesses or documents to which his reply was in the negative. Preliminary enquiry was conducted on 26.06.2004 and the pet itioner was asked as to whether he would accept the charge or not to which his r eply was in the negative. On the next date of hearing, i.e. on 21.07.2004, the p etitioner was specifically asked as to whether he would have any defence assista nt to which also his reply was in the negative. As regards the documents, the pe titioner was asked as to whether there was any supporting documents which were g iven access to him and upon examination of the same by the petitioner, the enqui ry officer recorded in his proceeding about the same. Be it stated here that the petitioner duly signed the day to day proceeding recorded in the order sheets as a token of acceptance of the same.

17. From the above, the plea raised by the petitioner that he was not given access to the documents and was also not provided with the opportunity to engage his defence assistant, does not have any leg to stand. To that extent, there is suppression of material fact in the writ petition in stating that the petitione r was not provided with documents and opportunity to engage defence assistant.

18. The petitioner being receiver of the materials (Lubricants), it was his duty to deposit the same to the HPC stores. The plea that the truck had to remai n outside the Corporation’s gate throughout the night as the entry was denied an d that in absence of Driver in the trucks there might be theft of the materials, is hardly acceptable. The petitioner cannot absolve himself from the responsibi lity of handing over the same to the stores.

19. Referring to the evidence on record, it was submitted by the learned cou nsel for the petitioner that he had good faith in handing the authority to the D rivers to avoid any police harassment on the way to the Corporation’s premises a t Jagiroad and the petitioner used to get down before the trucks had reached the Corporation’s premises and resultantly the petitioner was not aware as to what followed thereafter, is not at all acceptable. Being the receiver of the costly materials, it was the duty of the petitioner to ensure that the same had reached the Corporation’s godown instead of getting down midway to go home. During the course of hearing, it was submitted by the learned counsel for the respondent Co rporation that the distance between the petitioner’s residence at Jagiroad and t he office premises of the respondent Corporation is hardly ‰ kilometre. Thus, it was incumbent on the part of the petitioner to go to the office premises of the Corporation ensuring safe arrival of the costly materials, he being the recipie nt of the same. In one of the questions put to him during enquiry, the reply of the peti 20. tioner was that the Management had not given him any instruction to check the it ems properly and that his duty was to see as to whether the materials had reache d outside the CISF gate and thereafter it was not his responsibility to ensure r eaching of the materials in the godown of the Corporation. To the specific quest ion as to whether the petitioner had verified/cross checked the challans and the materials, reply of the petitioner was in the negative.

21. As against the aforesaid defence of the petitioner, all the MWs examined on behalf of the Management of the Corporation unequivocally stated that it was the responsibility of the receiver of the Lubricant, i.e. the petitioner, to de posit the same to HPC stores, but the petitioner did not do so. He only collecte d the challans from the Driver on the next morning. He did not even enquire as t o whether the materials had reached the HPC stores.

22. Taking note of the evidence on record and upon scrutiny of the same in m inute details, the enquiry officer held the charge levelled against the petition er as established with the following assessments: (cid:28)ASSESSMENT : Shri P.K. Das (C.O.) was the custodian of Lubricant Procurement Fi le. He had been dealing the procurement of lubricants since April, 1994 as evide nt from M.D. 43, 44 and 45. Indent of materials (lubricants) received from Store s Deptt. in Purchase Deptt. went to Shri P.K. Das (C.O.) who telephoned IOC, Guw ahati to determine the availability of the lubricants. Shri P.K. Das (CO) prepar ed IOM to Finance for payment of the amount as calculated on the basis of rate c ard and referred at M.d. 61 which was singed by Shri D.N. Mahapatra, Sr. M(Pur) as referred at M.Ds. 53, 55 & 58. While preparing this memo, Shir P.K. Das (CO) used to add up excess amount than what was actually required as may be referred at M.D. 60. This excess amount matched with the price of 03 Nos. barrels of lubr icant SMG20W40 or more, which has been agreed by Shri P.K. Das(CO) during enquir y held on 13.09.2004. Shri P. K. Das (CO) received the cheque from Finance Deptt . and prepared D.O. which was singed by Shri Naren Saikia, Executive (Purchase). When Shri Saikia was not available, other Executive singed the D.O. Five D.Os. were prepared by Shri P.K. Das (CO) on dates as mentioned in the Charge Sheet, i .e. during April’03 to June’ 03 as referred in M.Ds 19, 46, 47, 48 & 49. Shir P. K. Das (C.O.) alongwith cheque and D.O. then went to IOC Guwahati with HPC’s tru ck No. ASN 5499 or hired truck Nos. AS 21/4257 & AS 01M/9283 as per record of IO C, Guwahati Security Register entries as may be referred in M.Ds. 6, 15, 23, 34 & 41 to bring the lubricants, Shri P.K. Das (CO) used to get post facto approval of his tour programmes as may be referred in M.Ds. 1, 10, 17, 25 and 36. Shri P .K. Das (CO) deposited the cheque and D.O. in IOC Guwahati and received the lubr icants as recorded in IOC Guwahati’s Challans/ Invoices under his own signature, as agreed by Shri P.K. DAs (CO) and as may be referred in M.Ds. 3, 12, 20, 26 & 38. Shri P.K. Das (CO) on return from IOC, Guwahati to Jagiroad used to inst ruct the driver to go to Beltola (lakhora) or ASEB Gate and unloaded there 03 o r 04 Nos. barrel of the lubricant or ASEB Gate and unloaded there 03 or 04 Nos. barrel of the lubricant SMG2040 at 4.00 p.m. On enquiry by the driver concerned Shri Babu Kanta Deka, Sr. Driver (M.W.4) as to why the said lubricant was being unloaded at Beltola (Lakhora) Shri P.K. Das (CO) had replied that the said lubri cant belonged to the IOC dealers. This reply of Shri P.K. Das (CO) is however ru led out since Shri P.K. Das (CO) had not brought any record or evidence during t he enquiry which could prove that the lubricants belonged to IOC dealers. The l ubricants belonging to HPC, NPM, brought from IOC, Guwahati against challan Nos. mentioned at para one above, were recorded in IOC, Guwahati’s Security Register . Shri P.K. Das(CO) had stated on 13.09.2004 that the item SMG20W40 was no rmally available from M/s Castrol and order was also placed over M/s. Castrol. W hile going to IOC, Guwahati he (Shri Das) on the way at Ganeshguri Guwahati got down and enquired whether they were having SMG20W40 & & & & &..This statement was ov erfuled by P.O. stating that as per Rate Contrct dated 06.11.2002, valid up 05.1 1.2003, with M/s. Castrol there was no order placed for supply of itmem SMG20W40 . Reference order copy No. B/10/20101692/LRF/20201319 dated 06.11.2002 can be re ferred in M.D. 62. Shri P.K. Das (CO) had admitted that it was his mistake in hi s reply on 13.09.2004. Shri P.K. Das (CO) after unloading the lubricant SMG20W40 at Beltola (La khora) or ASEB Gate, used to get down at Jagiroad and handed over the challans t o the driver concerned in respect of the materials in the tuck. Shri Babu Kanta Deka, Sr. Driver (M.W4) had stated on 11.08.2004 that he (M.W4) had talled the c hallans received from Shri P.K. Das (CO) with materials in the truck at the time of getting down of Shri P.K. Das (CO) at Jagiroad at 6.30 p.m. or 7.00 p.m. and next day M.W4 did not find shortage of challans or materials and no theft case ever. Shri P.K. Das (CO) in his statement on 29.07.2004 had stated that his du ty was to see whether materials reached outside the CISF gate. On 05.08.2004 Shr i P.K. Das (CO) stated that truck with loaded materials remained outside CISF ga te during late hours of evening and materials like bearing etc. had been stolen. The superior officers of Shri P.K. Das (CO) namely Shri S.N. Chakraborty , AM(Stores) (M.W3), Shri Naren Saikia, Executive (purchase) (MW5) and Shri D.N. Mahapatra, Sr. M(Pur) (MW7) have stated on 05.08.04, 26.08.04 and 30.08.04 resp ectively that Shri P.K. (CO) had responsibility of depositing lubricants includi ng SMG20W40 received from IOC, Guwahati in NPM Stores. As regards parking of the truck, Shri Babu Kanta (MW4) stated on 11.08.04 that when the materials could n ot be deposited in the Stores the same day, he parked the truck at 6.30 p.m. or 7.00 p.m., sometimes in front of main Gate and sometimes inside the Materials Ga te near CISF duty office after obtaining permission from CISF personnel. There w as no case of theft or FIR in respect of items SMG20W40 during the period April’ 03 to June’03, as stated by Shri P.K. Das (CO) himself and Shri S.N. Chakravorty , AM(Stores) (MW3) on 05.08.04 and Shri Shri D.N. Hahapatra (MW7) on 30.08.04. T he fact remained that 03 or 04 nos. barrels of the item SMG20W40 was unloaded at Beltola (Lokhora). Shri P.K. Das (CO) had stated on 14.09.04 that he did not verify the nex t day from the driver whether challans of items SMW20W40 were with the driver co ncerned and also did not verify in NPM stores whether items SMG20W40 had been de posited in NPM stores. The NPM Store Keeper Shri Khargeshwar Saikia SSW(SG) (MW1) stated on 29. 07.04 that he checked the materials in the truck as per the challan and when bot h materials and the challan tallied, he directed the labours to empty the truck. For example, five challans as per five times of lubricants were received and th en entered in the Materials Receipt Log Register (Stores Deptt.) on page No. 203 against Log No. E111 dated 27.05.03 MW 1 also stated that whatever challans wer e received, materials were checked and entered. MW2 has stated that materials ot her than SMG20W40 were received entered in the Register and GRV prepared and pas sed as referred in MDs. 14, 22, 33 & 40. On comparison of the entries of lubricants in IOC Guwahati’s Security Re gister and NPM’s Materials Receipt Log Register (Stores Deptt.), it is found tha t there was a difference of 03 or 04 nos. barrels of lubricants which were recei ved from IOC, Guwahati but were not deposited in NPM Stores. This refers M.Ds. 6 , 7, 15, 16, 23, 24, 34, 35, 41 & 42. There is no record of the item SMG20W40 in Material Gate Register of CISF also, although other items are recorded. This re fers M.Ds. 50 & 51. These 03 or 04 Nos. barrels of lubricants corresponded with the disputed nos of barrels of the same lubricant as referred in the charge shee t issued to Shri P.K. Das (CO). It is therefore concluded beyond doubt that Shri P.K. Das (CO) had in fa ct unloaded the lubricant SMG20W40 at Beltola (Lakhora) or ASEB Gate and had rem oved the corresponding challan which he did not hand over to the driver concerne d. (cid:29)

23. The petitioner was given opportunity to have his say against the enquiry report to which he had responded by his Annexure-XII representation dated 15.12 .2004 in which he reiterated that his duty was only to see whether the materials had reached the CISF gate of the Corporation or not. Nothing specific was conte nded against the enquiry report. Rather, he contended that there might be loss o f materials, but he was not responsible for the same. The disciplinary authority considering the entire materials on record, c 24. ame to the conclusion that the petitioner was guilty of dishonesty, deception an d corrupt practice within the meaning of the provisions of the Certified Standar d orders applicable to the Corporation and decided to impose the major penalty o f removal from service with the stipulation that same would not be disqualificat ion for future employment of the petitioner. When the petitioner preferred an ap peal against the said order, the appellate authority also considered the materia ls on record and passed the Annexure-XV order dated 01.04.2005 rejecting the app eal. Nothing specific was urged in the appeal either any procedural irregularity in conducting the enquiry or on merit of the case.

25. In Bhagat Ram (supra), the Apex court dealing with the departmental enqu iry viz-a-viz natural justice, held that the delinquent has a right to be repres ented by any Govt. servant in the departmental proceeding. It was also held that the punishment must be proportionate to the gravity of the misconduct. In the s aid case, the delinquent was not given opportunity to engage his defence assista nt. This case is of no help to the case of the petitioner inasmuch as the petiti oner was given opportunity to have defence assistant, but he declined to engage any. As regards the proposition that the punishment must be proportionate to the gravity of misconduct, it is not the case of the petitioner that even if the ch arge against him is held to have been established, the penalty imposed is dispro portionate. In Saroj Kr. Sinha (supra), it was held that non-furnishing of the funda 26. mental documents on lame excuse was fatal to the enquiry. It was held that in ab sence of the related documents being foundation of the charge sheet, it was not possible for the delinquent to make effective, written statement of defence. In the instant case, the petitioner was given access to all the documents about whi ch discussions have been made above. Throughout the enquiry he had never contend ed that he was handicapped because of non-furnishing of any documents. A vague s tatement without any specification cannot help the petitioner towards sustaining the plea of prejudice being caused in the departmental enquiry in absence of do cuments. As noted above, the disciplinary proceeding file speaks otherwise.

27. In T.N.C.S Crop. Ltd. (supra) on which the learned counsel for the Corpo ration has placed reliance, the Apex Court dealing with the scope of judicial re view in the matter of findings recorded by the enquiry and disciplinary authorit y, held that mere acquittal of the delinquent in a criminal proceeding ipso fact o cannot lead to his exoneration in the departmental proceeding. It has further been held that when the delinquent is found guilty of misappropriation of Corpor ation’s fund, primary factor to be taken into consideration is the loss of confi dence and not the amount of money misappropriated. In paragrlaph-35 of the judgm ent, it has been observed thus: (cid:28)35. In the instant case, the charged employee holds a position of trust where h onesty and integrity are inbuilt requirements of functioning and, therefore, in our opinion, the matter should be dealt with firmly with firm hands and not leni ently. In the instant case, the respondent deals with public money and is engage d in financial transactions or acts in a fiduciary capacity and, therefore, high est degree of integrity and trustworthiness is a must and unexceptionable. Judge d in that background, the conclusion of the learned Singh Judge as affirmed by t he Division bench of the High Court do not appear to be proper. We have no hesit ation to set aside the same and restore the order passed by the disciplinary aut horities upholding the order of dismissal. (cid:29)

28. In S.N. Goyal (Supra), it has been held that when the enquiry was found to be fair and proper and the finding of guilt in the enquiry in respect of a se rious charge was found to be valid, in the absence of any other valid ground of challenge, the courts below ought to have held that the penalty of removal from service did not warrant any interference and dismissed the suit. In the instant case, learned counsel for the respondent Corporation has placed reliance on this case to buttress his argument that the court exercising the writ jurisdiction w ill not sit on appeal over the findings recorded by the disciplinary authority i n respect of the penalty imposed.

29. The money suit that was filed by the respondent Corporation might have b een dismissed, but the same by itself cannot make the departmental proceeding th at was initiated against the petitioner redundant. The said proceeding was initi ated for misconduct attributed to the petitioner and the same was established in the enquiry. The Corporation having lost its confidence on the petitioner, it w as within its jurisdiction and competence to remove the petitioner from service pursuant to the departmental proceeding in which the charge levelled against the petitioner was established. It is altogether a different thing that in the civi l proceeding initiated against the petitioner for realisation of the amount misa ppropriated has been dismissed. During the course of hearing Mr. Roy, learned co unsel for the respondent Corporation had submitted that against the judgment of dismissal of the suit, an appeal is being preferred. Irrespective of the said po sition and even if the dismissal of the money suit filed by the respondent Corpo ration is accepted as finality to the matter, the concept of departmental procee ding viz a viz civil proceeding for realisation of the amount defrauded and/or loss to the employer because of the misconduct attributed to the delinquent, bei ng quite distinct and different, the petitioner cannot harp upon the said civil proceeding so as to question the departmental proceeding in which he was found guilty of the charge. Having regard to the seriousness of the charge, it cannot be said that the punishment imposed on the petitioner is disproportionate to the gravity of the misconduct. For all the aforesaid reasons, I do not find any merit in the writ petit 30. ion and accordingly, it is dismissed. However, there shall be no order as to cos ts.