Judgment · High Court · 2012

#3. As many as 11 witnesses were cited as witnesses on behalf the Discipli nary Authority. By the aforesaid said memorandum of charge sheet, the petitione r was asked to submit his written statement of defence. The petitioner submitted his written statement on 19.03.2001 denying the charges levelled against him. I t was urged in his defence that the differences shown by the special physical ve rification were not acceptable as a good number of loose and empty bags were fou nd when the charge was taken over from the predecessor. It was also stated that the said condition was brought to the notice of the Assistant Manager (QC) who was the In-Charge of the FSD, Chinnamara. It was also stated that loose, cut and torn bags and re-staking of scattered bags were restacked by the Assistant Mana ger (QC) to make the godown countable. Thus, it was urged in the written stateme nt that shortage, if any, was already existing before taking over charge by the petitioner.

#4. Significantly, the petitioner in his written statement referred to the r equest made to the Management to arrange 100% counting/ weightment due to his ap prehension of shortage. He also referred to his letter dated 06.09.1994 intimati ng about his apprehension. However, there was no response from the Management, r ather offence was taken for not taking over charge. It was at that point of time , he was transferred to North Lakhimpur. However, the petitioner went on leave w .e.f. 15.09.1994 to 04.01.1995. After rejoining duty, he was pressurised to take over charge of Shed-B, FSD, Chinnamara. In the written statement, the petitione r also mentioned about the instruction furnished to him by one Mr. Rao, the then District Manager to take over charge on Book Balance as per the direction of th e Senior Regional Manager over phone for the fact that the godown was jam-packed and uncountable position at that time.

#5. The defence version of the petitioner having not been accepted, the Disc iplinary Authority ordered for an enquiry by appointing one retired IAS Officer. It appears that during the course of enquiry, 8 witnesses were examined. They a re all the officers of FCI. Admittedly, the petitioner was not examined, nor he was asked to furnish his statement in defence.

#6. On completion of the enquiry, the enquiry officer submitted his report h olding that the charge aginst the petitioner was established. Consequent upon su ch finding recorded by the enquiry officer, the petitioner was asked to submit h is representation against the said findings. In response to the said enquiry rep ort, the petitioner by his Annexure-E letter dated 19.07.2002 intimated the Disc iplinary Authority about his inability to submit his reply due to his acute ki dney problem. By the said letter the petitioner prayed for few days more time to submit his representation. However, it appears that without taking the represen tation from the petitioner, the Disciplinary Authority passed the impugned order dated 16.09.2002 (Annexure-F) dismissing the petitioner from service.

#7. I have heard Mr. B.N. Gogoi, learned counsel for the petitioner as well as Mr. P.K. Roy, learned SC, FCI. Mr. Gogoi submits that during the course of th e proceeding the petitioner was not given adequate opportunity to submit his de fence. Mr. Gogoi has also argued that the findings recorded by the enquiry offi cer are totally perverse inasmuch as there is no evidence whatsoever to establis h any fault on the part of the petitioner in respect of the alleged loss of the stock. According to him, in the same case, one of the accused, namely Md. Tazau l Haque who was also charged like that of the petitioner, has been imposed with lesser penalty.

#8. Mr. P.K. Roy, learned SC, FCI on the other hand submits that the petitio ner having been found guilty of the charge in the departmental enquiry and there being overwhelming evidence to sustain the findings recorded by the enquiry off icer, this Court in exercise of the power of judicial review under Article 226 of the Constitution of India, will not interfere with the same. According to him , although the petitioner was not given the opportunity to examine himself in hi s defence, but the same may not have any consequence, inasmuch as no prejudice w as caused to the petitioner. He also submits that the witnesses examined having categorically stated about the loss of the stock, there was no escape from the l iability of the petitioner from the misconduct attributed to him.

#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 r esponsibility, only one person cannot be held responsible for the alleged miscon duct. 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.

#20. For all the aforesaid reasons, I am of the considered opinion that the e nquiry proceeding and the enquiry report are not sustainable in law and liable t o be interfered with. Consequently, the impugned orders of the Disciplinary Aut hority and the appellate authority passed on the said proceeding and the report are also not sustainable in law. Both the orders, i.e. the order of dismissal f rom service on 19.09.2002 and the appellate order dated 20.10.2003 (Annexures- F and G) are set aside and quashed.

#21. This now leads us to the question as to how the period during which the petitioner was not on duty because of the impugned order of dismissal dated 16. 09.2002 is to be treated. By now about 10 years have gone by since the impugned order was passed on 16.09.2002. At the time of filing of the writ petition, the petitioner declared his age as 51 years. Learned counsel for the petitioner sub mits that the petitioner has already attained the age of superannuation. Thus, a lthough the order of dismissal from service is set aside and quashed, there is no question of reinstatement of the petitioner in service. However, he shall be deemed to in service all throughout with all consequential benefits, without how ever, the full back wages. He shall be entitled to only 50% of the back wages.

#22. be no order as to costs. The writ petition is allowed to the extent indicated above. There shall