High Court · 2012

3. Facts of the case may be briefly noted.

4. While the petitioner was serving as Assistant Manager (Movement) in Cin namara Depot, District Jorhat under the FCI, a departmental proceeding was initi ated against him. The charge against the petitioner was that he was directed b y the higher authority to conduct Annual Physical Verification of both sheds of Cinnamara Depot along with five other members. By a subsequent order, the petit ioner and the other members were directed to conduct Annual Physical Verificatio n by 100% weighment of one chamber of each shed of the Depot as on 31.3.1997 by starting the process of Annual Physical Verification from 25.3.1997 and the re st of the stock by peripheral counting of bags. The allegation was that the pet itioner did not conduct the Annual Physical Verification in a proper manner and prepared the report by way of manipulation, thereby concealing shortage in Sh ed (cid:28)B (cid:29) which was however subsequently detected by a Special Physical Verific ation team which conducted physical verification from 26.4.1997 to 28.5.1997 i n Shed (cid:28)B (cid:29). Further allegation was that though the petitioner was the team Incha rge, he did not ensure the attendance of the team members while carrying out th e Annual Physical Verification and obtained signatures of such members in false Annual Physical Verification report. He was therefore charged with failure to maintain absolute integrity and devotion to duty, prejudicial to the interest of the FCI thereby contravening various provisions of FCI (Staff) Regulations, 1

5. The show cause notice dated 17.7.2002 containing the charge was accompa nied by lists of documents and witnesses by which the charge was sought to b e sustained.

6. Petitioner submitted his reply dated 5.8.2002. He denied the allegations and stated that the delay in completing the Physical Verification by 100% wei ghment as well as by peripheral counting was attributable to the fault of the o fficials associated with the stores. The petitioner however admitted that thoug h he was the over-all Incharge of the team to conduct Physical Verification, he counted the bags available in the respective stacks, but the quantities were n ot taken into account save and except the store of Chamber No.4 of Shed (cid:28)B (cid:29).

7. The reply submitted by the petitioner was not accepted by the disciplina ry authority and accordingly a departmental proceeding was ordered. The manage ment examined a large number of witnesses who were cross examined by the petiti oner, who was also provided with a defence Assistant. The petitioner did not pr oduce any witness, but his statement was recorded and considered by the Enquir y Officer. On consideration of the evidence adduced and other materials on recor d, the Enquiry Officer in his report dated 26.3.2003 held that the charge framed against the petitioner stood proved.

8. On being furnished a copy of the enquiry report, petitioner submitted r epresentation before the disciplinary authority which was considered. Thereafter , the disciplinary authority by order dated 5.9.2003 held that the petitioner wa s guilty of the charge levelled against him and was of the view that the penalt y of reduction to the lower post of AG-I (M) at the minimum of scale would meet the ends of justice. Accordingly, the disciplinary authority imposed the said penalty. Though the petitioner filed appeal, the same was not considered.

9. When the petitioner approached this Court in WP(C) No.9835/2003, this C ourt by order dated 5.12.2003 disposed of the said writ petition with the direc tion that the appellate authority should first consider and decide the statuto ry appeal filed by the petitioner against the order of penalty. Thereafter, th e appellate authority passed order dated 31.12.2003 rejecting the appeal file d by the petitioner.

10. he reliefs as indicated above. Aggrieved, the petitioner has filed the present writ petition seeking t

11. The respondents have filed their counter affidavit wherein they have s tated that the petitioner was entrusted to conduct Physical Verification in She d-B of the Food Storage Depot , Cinnamara on 31.3.1997. He submitted his report regarding Shed-B as on 31.3.1997 and the report regarding 100% weighment of on e chamber of the depot vide his letter dated 25.4.1997. The Zonal Internal Audit or visited Cinnamara depot and obtained stock position as on 26.4.1997. On obs erving discrepancy, he ordered Special Physical Verification . While in the P hysical Verification conducted by the petitioner and his team members with effe ct from 25.3.1997 to 25.4.1997 no difference was detected, the Special Physical Verification conducted immediately thereafter with effect from 26.4.1997 to 28 .5.1997 found huge shortage . The subsequent team even found that some stacks did not exist at all. In the meanwhile, the Central Bureau of Investigation (CBI ) investigated the matter following which show-cause notice dated 17.7.2002 was issued to the petitioner. The respondents have stated that as the disciplin ary authority was not satisfied with the reply of the petitioner, it was decided to conduct a disciplinary proceeding and in this connection, Sri D.C.Pathak, IAS( Retd.) was appointed as Enquiry Officer. The petitioner engaged Sri Barun Saikia as defence Assistant. As per averments made in the counter affidavit, du ring the enquiry all documents/papers pertaining to the prosecution case were in spected by the petitioner. The prosecution witnesses were also examined and cros s examined. On completion of the enquiry, Enquiry Officer submitted his report dated 26.3.2003 holding that the charge against the petitioner stood proved. Pet itioner was furnished with a copy of the enquiry report. After considering the representation of the petitioner in respect of the enquiry report, the discipl inary authority imposed the penalty of reduction in rank to the lower post of A G-I (M) at the minimum of the pay scale. It is further stated that in the appe al filed by the petitioner, though the appellate authority made provision for personal hearing of the petitioner, he did not appear. The respondents have sta ted that the petitioner failed to prove the date on which the Annual Physical Verification was completed. Further stand taken is that when the Special Phys ical Verification team conducted the Physical Verification of stock on 26.4.1 997 i.e. just after one day, the Special team found a number of stacks not in e xistence as per Stock Ledger and as per declaration of shed Incharge. It is t he contention of the respondents that the Physical Verification report submitt ed by the petitioner was a manipulated one and not based on facts and this was proved in the departmental enquiry.

12. In his reply affidavit, petitioner stated that the peripheral counting was completed on 8.4.1997 whereafter, the 100% weighment part was started on 9.4.1997 and completed on 15.4.1997. He has explained that the period from 15.4 .1997 to 25.4.1997 i.e. the date of submission of Annual Physical Verification report was used for compilation of the documents and preparation of the report . He further stated that in the enquiry he had filed an application on 27.12.20 02 before the Enquiry Officer requesting for supply of six documents. Though in itially the Enquiry Officer called for the said documents but subsequently on 9.1.2003, the Enquiry officer held that those documents were not relevant for t he purpose of the enquiry which caused prejudice to him. He has also stated tha t though disciplinary proceedings were initiated against other members of his team, relatively minor punishments were imposed on them as compared to the petit ioner.

13. Learned counsel for the petitioner submits that the petitioner was not granted a fair hearing. Petitioner had requested the Enquiry Officer to furnis h six documents. Though the Enquiry Officer initially accepted the prayer and called for production of the said documents on the next date, later on, after h earing the Presenting Officer, he took the view that those documents were not r elevant for the purpose of the departmental enquiry and production of the said d ocuments was dispensed with. Learned counsel for the petitioner submits that den ial of the said documents not only constituted violation of Regulation 58(12) of the FCI( Staff )Regulations, 1971 but also caused prejudice to the petition er as in the absence of the said documents he could not properly defend his ca se. He also submits that while on one hand, the Enquiry Officer declined to fu rnish the documents as prayed for by him, on the other hand, the disciplinary authority in the impugned order of penalty held that the petitioner could not p roduce any additional document or material evidence to contradict the finding of the Enquiry Officer. This, he submits, is contradictory which has vitiated the impugned order. Learned counsel for the petitioner submits that the two ve rification reports, one by the team headed by the petitioner and the other by the team from the Zonal office conducted the verification for different peri ods and in the period between the two verifications, the depot was in operatio n . He therefore contends that the discrepancy noticed by the subsequent team cannot be automatically fastened on to the petitioner. He submits that the ev idence of one of the management witness Mr S. Hussain was in favour of the peti tioner which was not properly considered either by the Enquiry Officer or by t he disciplinary authority. He therefore submits that the finding of the Enquiry officer and the decision of the disciplinary authority are based on misreadi ng of the evidence , thus rendering the same perverse. He also submits that th e disciplinary proceeding against the petitioner being conducted in violation of the settled principles of natural justice and fair play, this Court should i ntervene in the matter by setting aside the order of penalty and directing rele ase of consequential benefits to the petitioner. Mr P.K. Roy, learned Standing Counsel, FCI on the other hand submits th 14. at the management had furnished all the documents which were relied upon to s ubstantiate the charge. He submits that the additional documents which the pet itioner wanted in the course of the enquiry were not relevant for the purpose o f the enquiry and the Enquiry Officer was justified in not entertaining the sai d prayer of the petitioner. He has also referred to the provision of Regulation 58 of the FCI (Staff )Regulations to contend that the petitioner had to indi cate the relevance of the documents required by him to be discovered or produce d by the management. According to him, the petitioner did not indicate the rel evance of such documents. He also did not indicate the prejudice that would be caused to him by non-furnishing of the documents. Learned Standing Counsel finally submits that there was no violation of any procedural requirement and t hat the petitioner was given a fair hearing. The finding of the Enquiry officer is based on the materials on record. The view taken by the disciplinary autho rity is a plausible one and, therefore, this Court should not intervene in the matter.

15. The submissions made have received the due consideration of the Court.

16. In the matter of departmental enquiry and punishment imposed following suc h enquiry , the writ court would normally confine its scrutiny to see whether the charged official has been provided a fair hearing or not. The Court in the e xercise of its powers under Article 226 of the Constitution of India may also satisfy itself that there is a reasonable nexus between the materials on record and the conclusions reached either by the Enquiry Officer or by the disciplina ry authority which, unlike in a criminal proceeding, is based on preponderance of probability. In other words, the conclusions and the findings should not be such that can be characterized as being based on no evidence or on a complete m isreading of the evidence resulting in a perverse finding. In recent times, th e question of punishment imposed on the delinquent has also engaged the atten tion of the Court. A writ Court may intervene in an appropriate case if it find s that the punishment imposed is excessive, grossly disproportionate or if i t is found to be shocking to the judicial conscience.

17. Having noticed the broad parameters of the writ power, the Court may now examine the case projected by the petitioner.

18. The charge against the petitioner has already been noticed in the p receding part of this judgment. The basic charge is that though he was detaile d to conduct Physical Verification of both the sheds of Cinnamara depot along w ith other members of his team, he did not conduct the verification in a prope r manner and prepared the report by way of manipulation in connivance with the depot Incharge, concealing huge shortage in the stock which was subsequently detected in a Special Verification conducted by other officials. In his writt en statement, though the petitioner denied the charge against him, he also too k the stand that the delay in completing the Physical Verification was attribut able to the fault of the officials associated with the store, thus, indirectly admitting his lapse. The show cause notice was accompanied by a list of nine documents on the basis of which the management sought to substantiate the cha rge against the petitioner. In his written statement, the petitioner did not see k any further additional document. Only in the enquiry he sought for productio n of six documents which he contended to vital and relevant. Those document s are as under :- (cid:28) 1. H.Q. letter No. S & S/SA/37/1(18)/93-94/APV/dtd.31-1/4-2-1994

2. H.Q. letter No.S & S/SA/37/1(20)/97/APV/dtd.19.02.97

3. Assignment of duties to be performed by the Asstt. Managers while acting as over all incharge of P.V. works in depots. 4. Labour out put slips pertaining to the Annual P.V. works of Shed ’B’ of FSD/C innamara during April, 1997.

5. Replies of the Charge Sheet furnished by the Annual P

6. Monthly MTR and Stock account for the month of March, 1997. (cid:29) .V. team of March, 1997. Though the Enquiry Officer on 27.12.2002 fixed 9.1.2003 for production of tho se documents, on 9.1.2003, he passed an order holding that the said document s were considered not relevant to the departmental enquiry.

19. Regulation 58 of the FCI(Staff) Regulations provides the procedure f or imposing major penalty. As per note below Sub- Regulation 11 of Regulation 5 8, the charged employee has to indicate the relevance of the documents required by him to be discovered or produced by the management. The enquiring authority on receipt of such a notice may require the management to produce the document s. However, the enquiry authority may for reasons to be recorded in writing ref use to requisition such documents if in his opinion those are not relevant to th e case.

20. The procedure provided in Regulation 58 is only to ensure that the ch arged employee gets a fair hearing in the departmental proceeding. The procedur al requirements are to be seen and considered in the over all perspective of th e departmental proceeding and not in an isolated manner to ensure that minor pr ocedural deviation here and there do not derail the entire departmental proceedi ng.

21. In the present case, all the documents which were relied upon by the management were furnished to the petitioner. In his written statement, the peti tioner did not ask for any further additional document. Subsequently, when he so ught for additional documents, the Enquiry Officer declined to consider the pra yer as he was of the view that those documents were not relevant for the enquiry . In view of the above, this Court is of the opinion that there was no violatio n of the procedural requirement as provided in Regulation 58.

22. Coming to the evidence of Mr S. Hussain, one of the management witness es ( witness No.1), his statement has to be considered along with the statement of the other witnesses and not in isolation. After considering the evidence add uced by various witnesses, the Enquiry Officer in his enquiry report concluded as follows :- (cid:28) It is significant that witness No.1 then Depot Incharge FSD, Cinnamara and S hri P.D. Bora, then Shed Incharge, Cinnamara (cid:28)B (cid:29) Shed who were also members of the Zonal physical Verification team signed the Zonal P.V. report dt. 28.5.1997 marked EX-H. Shri Deori has pleaded that the peripheral counting was completed on 8.4.1997 an d 100% weighment of Chamber No.4 stock was conducted from 9.4.97 to 15.4.1997. In this context it is found on records that the signatures of Shri Deori on the Stock Ledgers and the final District Annual P.V. report do not indicate any date . Even the weighments sheets of stocks at Chamber No.4 of Shed (cid:28)B (cid:29) shown to ha ve weighed on 11.4.1997, 15.4.1997 ect. do not bear the signature of Shri Deori. Those weighment sheets signed by other members, not all of the team also do not indicate date. The peripheral counting sheets of Shed (cid:29)B (cid:29) particularly of Stack No.1/1/B,1/3/B,1/4/B,1/8/B and 1/12/B were also not signed by Shri Deori. Those were signed by other members, not all who also did not indicate any date except Shri Dwijendra K.r Borah witness No.5 who indicated the date as 8.4.1997. Thus Shri Deori has failed to prove on records the date on which the Annual P.V. was completed and report submitted. The witness No.1 who was himself Depot Incharge, FSD, Cinnamara at the relevant time has stated in cross examination that the Annual P.V,. was completed in all respects on 25.4.1997. The Zonal P.V. was w.r .t. stock as on 26.4.1997(OB). Thus there was no gap between the closure of Dis trict Annual P.V. and the date with reference which Zonal P.V. was conducted. T he above facts have proved that the District Annual P.V. was not conducted prop erly by Shri Deori. FINDINGS : The Article of charge framed against Shri Jogneswar Deori, AM(Mov t.), Jorhat as per Memorandum No.4(4)/NEZ/98 dt. 17.7.2002 by the Zonal Manager, FCI Zonal Office (NE), Guwahati stands proved as discussed in details above. (cid:29) The disciplinary authority considered the enquiry report as well as the representation submitted by the petitioner and after due consideration, held

23. as follows :- (cid:28) The above contentions of the CO have adequately been discussed in evidence during the enquiry proceedings. The CO has not produced any additional docum ents or material evidence which may prove to be contrary to the findings of I .O. However, the fact on record and as submitted by the said C.O. that the i mpugned APV report as on 31.3.1997 has been signed by the AM(A/Cs) and the DM, Jorhat in token either satisfaction to the said APV report is not in dispute. In view of the facts and circumstances of the case and the findings of t he Inquiry Officer and the contentions put forth by the said CO and after apply ing my mind, it is considered that the said CO is guilty of the charges level led against him and a penalty of reduction to the time scale Accordingly, in exercise of the powers conferred under Regulation 54 of th e FCI(Staff) Regulations, 1971 a penalty of reduction in rank to the lower post of AG-I (M) at the minimum of the scale is imposed on said Shri J.Deori, AM (Mo vt.) with immediate effect. (cid:29)

24. Thus, on an overall consideration of the materials on record, this Cou rt is of the considered opinion that the petitioner was provided reasonable opp ortunity of hearing in the departmental proceeding. The finding of the Enquiry Officer and the decision of the disciplinary authority are based on the evidenc e on record. The penalty imposed on the petitioner i.e. reduction in rank to a lower post cannot also be said to be excessive or disproportionate to the c harge which stood proved after a full fledged departmental enquiry.

25. In view of the above, there is no ground to interfere. Writ petition accordingly stands dismissed. No costs.