High Court
Case Details
WP(C) 1695/2005 BEFORE HON’BLE MR JUSTICE B. K. SHARMA JUDGMENT & ORDER (oral) This writ petition is directed against the Annexure-11, order da ted 01.09.2004 imposing on the petitioner the penalty of forfeiture on 50% of th e gratuity amount, which was payable to the petitioner. Be it stated here that t he said order of penalty was pursuant to a departmental proceeding initiated aga inst the petitioner and at the time of passing the said order he had retired fro m service on attaining the age of superannuation. 2. Charge sheet dated 29.11.2001 was issued against the petitioner with the following two charges: (cid:28)ARTICLE OF CHARGE NO.1
Legal Reasoning
That Shri Swadesh Ranjan Biswas, while posted and functioning as the Chi ef Engineer (Civil), Material Management Wing, NEEPCO Led., Guwahati during 1995 failed to maintain absolute integrity, devotion to duty and acted in manner unb ecoming of his position in as much as he, being head of the purchase committee f or procurement of Ordinary Portland Cement on emergency basis, selected M/s Subh am Industries Ltd. Bijabahal, who was not having adequate capacity to manufactur e the required quality and quantity of cement within the specified time and plac ed supply order dated 27.05.1995 for supply of 3300 MTs of OPC @ 2575/- per MR o n them but the said party failed to deliver the quality product within the sched uled time as a result of which NEEPCO incurred huge financial loss due to supply of substandard cement by M/s Subham Industries which were eventually used in pe tty works like grouping, back-filling, etc. Instead of being used in the main p roject work of RHEP NEEPCO, Yazali, Arunachal Pradesh and thereby the above acts of yours contravened the provision of Rule 4(1)(i),(ii), (iii) of NEEPCO Conduc ted, Discipline & Appeal Rule. ARTICLE OF CHARGE NO. 2 The said Shri Swadesh Ranjan Biswas favoured M/s Subham Industries Ltd., in respect of the above supply in collusion with Sh. S. P. Mallick, the then SD O(Civil), NEEPCO Ltd., Kolkata in as much as he did not incorporate any penalty clause in the supply order dated 27.05.1995 placed on them and asked Sh. D. Purk ayastha, the then SE (C), NEEPCO Ltd., Kolkata to revoke the cancellation order for supply of 2nd consignment of cement by said M/s Subham Industries Ltd. Alth ough the party had supplied substandard quality of cement in the first consignme nt and delayed the delivery beyond period stipulated in the supply order and got their bills passed by getting the same certified by Sh. D. Purkayastha instead of getting the same certified by the concerned consignee i.e. EE(C), NEEPCO Ltd. , Guwahati and he had also threatened to transfer Shri Pradeep Das, the then SDO (C), RHEP, Yazali for pointing out the bad quality of Subham Cement to one of th e remotest concerns in the North-East who was subsequently transferred to Tuiria l Hydro Electric Project, Vairengte, Mizoram. He had also threatened Shri Mantum oni Bora, the then SDO(C) Stores Division NEEPCO, Guwahati to transfer him out o f Guwahati for pointing out the poor conditions of Subham cements and he was acc ordingly transferred to AGEPP, Agartala. Shri S. R. Biswas, therefore, by the above acts of omissions and commiss ions contravened the provisions of Rule 4(1)(i), (ii) & (iii) of NEEPCO Conducte d, Discipline & Appeal Rules. (cid:29) 3. Along with the charge-sheet the statement of imputation of articles of c harges was also furnished and also the lists of documents and witnesses. The pet itioner furnished his written explanation by Annexure-2, letter dated 21.01.2002 denying the charges. In due course, a departmental enquiry was conducted and th e Enquiry Officer, on conclusion of the enquiry, submitted his report. It was he ld that both the charges levelled against the petitioner stood partly proved. Th ereafter, following the due procedure the petitioner was imposed with the afores aid penalty of forfeiture of 50% of the gratuity amount. 4. I have heard Mr. N. K. Baruah, learned counsel for the petitioner. I hav e also heard Mr. K. P. Sarma, learned Senior Counsel assisted by Mr. H. Gogoi, l earned counsel appearing for the respondent. I have also gone through the entire materials on record. 5. Mr. N. K. Baruah, learned counsel for the petitioner submits that since the particular decision was a collective one, the petitioner could not have been attributed with the guilt/misconduct. He further submits that a particular deci sion was taken having regard to the emergent situation and if there was any mist ake in the said decision, the same, at best, could be said to be a case of negli gence and not misconduct. 6. Countering the above arguments, Mr. K. P. Sarma, learned Senior Counsel representing the respondent submits that the charges being serious, the penalty imposed cannot be said to be arbitrary. He further submits that the Inquiry Offi cer, having conducted the inquiry following the due procedure the findings there of cannot be interfered with exercising writ jurisdiction. 7. So far as the first charge is concerned, while attributing the misconduc t to the petitioner as head of the Purchase Committee for procurement of ordinar y port land cement on emergency basis, the Disciplinary Authority has ignored th e fact that the petitioner was only as member of the Purchase Committee and his role in the decision making process of the said Committee was similar to that of the other members of the Committee. Even in the enquiry report, dealing with th is aspect of the matter, the Enquiry Officer noticed that the responsibility to procure cement was collective and that the petitioner was only a member of the s aid Committee. In this connection the evidence adduced by PW-1 may be referred t o. In his cross-examination, he categorically stated that there was no designate d head in the Purchase Committee. He, in his cross-examination further stated th at the decision was taken by the Committee jointly and all the members signed th e report favouring the particular agency for procurement of cement on emergency basis. 8. From the above, there is no manner of doubt that there was a collective decision of the Purchas Committee to procure the cement from the particular orga nisation and the petitioner, alone purportedly, heading the committee could not have been penalised. In this connection, I may gainfully refer to the decision r ecorded in (2006) 1 GLT 235 (Girish Ch. Sharma versus BRPL) in which under simil ar circumstances when the petitioner was picked up for differential treatment fo r a collective decision, it was held that for a collective decision the petition er could not have been penalised. 9. espect of the first Article of charge. 10. This now leads up to the second Article of charge in which there are dif ferent components such as non mentioning of the penalty clause in the supply ord er; in spite of supply of substandard quality of cement and the decision to canc el the order relating to the second rake of cement, the petitioner’s order to pr ocure cement from the same party by issuing direction to cancel the cancelation order; pressurising the particular officers to cancel the cancelation order in r espect of the second consignment of the cement etc. In respect of this charge al so, the Enquiry Officer has found the same to have been established partially. S o far as the purported threats to the officers by the petitioner, the same has b een held to be not established in the enquiry. However, the other two components , namely, non-indication of the penalty clause in the purchase order and the dir ection to cancel the cancellation order in respect of the second consignment hav e been found to be established in the enquiry. 11. In the counter affidavit filed by the respondent the copy of the supply order has been annexed as Annexure-1, dated 29.11.2001. The order was placed by none other than the petitioner, although, he in his deposition had asserted that the supply order was placed collectively by the members of the Committee. So fa r as the second component of the charge is concerned it has been found that the second rake order was cancelled on 12.07.1995, having regard to the substandard quality of cement found in the first rake order. However, on the same date i.e. on 12.07.1995 the petitioner directly ordered for purchase from the same party f
Decision
In view of the above, I have no hesitation to set aside the finding in r or the second rake. Mr. Sarma, learned counsel for the respondent submits that t here is no evidence to show that such a decision was taken by the Purchase Commi ttee. However, Mr. N. K. Baruah, learned counsel for the petitioner submits that the second rake was obtained due to the emergent situation. He further submits that cement procured having been utilised, it cannot be said that a wrong was co mmitted by the petitioner. As regards the penalty clause he submits that althoug h, the supply order was under the signature of the petitioner but the same was a s per the decision of the Purchases Committee. 12. In the cross-examination of Sri P. K. Bhattacharya, PW-1, he has categor ically stated that although the supply order was signed by the petitioner but si gnatures of other members of the Committee were also obtained in the office copy . As regards the revocation of the cancelation order, the PW-2 in his deposition stated that the cancellation order was issued after telephonic discussion with CEOMM. However, the order was again revoked purportedly at the behest of the pet itioner. However, it is the stand of the petitioner that such a course of action was adopted to meet the emergent situation and also to complete the contract th at was executed with the party. This aspect of the matter, in my considered view needs further examination of the Disciplinary Authority. 13. In view of the above, the matter is remanded back to the Disciplinary Au thority to pass a fresh order taking note of the aforesaid observations in respe ct of the second charge. The Disciplinary Authority may also bear in mind that a t the time of filing the writ petition the petitioner was aged about 64 years an d by now he must be about 72 years of age. Let a fresh exercise be carried out a s expeditiously as possible but at any rate not later than 31st May, 2013 by pas sing a speaking order. To facilitate the fresh exercise, the impugned order date d 01.09.2004 (Annexure-11) stands interfered with. 14. ies to bear their own costs. Writ petition is allowed to the extent indicated above, leaving the part