Abedur Rahman vs Assam Agro Industries Development Corporation Ltd. and Others

V.D. Gyani, J.—This writ appeal by the writ Petitioner arises out of judgment and order dated 19.7.96 passed by a learned Single Judge of this Court in Civil Rule No. 2477 of 1994. The writ Petitioner Appellant joined the Assam Agro Industries Development Corporation Limited for short, the Corporation, in the Ulubari Branch at Guwahati in the year 1968 as Assistant Store Keeper and continued serving in the said capacity till 1979. When he was promoted as Store Keeper, eventually he met with dismissal from service. A disciplinary proceeding was instituted against him with following charges:

(a) Urea valued at Rs. 82,822.91 (Rupees eighty two thousand eight hundred twenty two and paise ninety one) only was found short during the course of physical verification on 3.6.90 while the Appellant was working as Assistant Grade II at Mangaldoi.

(b) Manipulation of Records by changing figure 2 MT to 12 MT in the stock book.

(c) During the period from 16.9.89 to 25.8.90 a quantity of five hundred (500) spades valued at Rs. 16,000/- were found to be short on verification on 5.6.90.

The writ Petitioner-Appellant denied the allegations. On completion of enquiry and after serving the 2nd show-cause notice, the Petitioner-Appellant was found to be guilty of having misappropriated a sum of Rs. 3,40,341.88 paise and eventually dismissed from service vide order dated 16.10.93 vide Annexure-6 to the writ petition. A departmental appeal was also preferred which was rejected on 28.12.93.

The main thrust of Mr. Saikia''s argument is no witness was examined by the Department to substantiate the charged levelled against the Appellant. It was submitted by the learned Counsel that a delinquent servant must not only know the charges or the accusation made against him, but also the evidence in supporting of the accusation. In the instant case no witness having been examined in support of the charges, the departmental enquiry held against the Appellant was violative of principles of natural justice. He, therefore, urged that the learned Single Judge was in error in holding that there was no violation of any procedural safeguard in holding the enquiry It was also argued mat the Appellant was questioned and counter-questioned. In violation of the principles of natural justice, he was denied reasonable opportunity to defend himself and as such, the impugned order of dismissal passed on the report of such enquiry is liable to be set aside.

Mr. B.M. Sharma, learned Counsel appearing for the Respondents on the other hand maintained that the writ Petitioner Appellant was realing under total misconception of law that a large number of witnesses should be examined to prove the charges. The same concept is sought to be projected and pressed into services as a proposition of law. There can be no quarrel that the submission made by the learned Counsel that the charges levelled against a delinquent servant must be substantiated and proved by the Department/Employer. Of course, the strict rules of evidence are not applicable to said departmental enquiries, nonetheless, the charges have to be substantiated, but the nature and degree of proof may vary from case to case. A mere glance of the charges as framed against the Appellant would go to show that they relate to defulcation and misappropriation of money. Naturally in such cases the bulk of evidence is documentay in nature and it is not even the Appellant''s case that documents, in proof of the charges levelled against him have not been produced. Really speaking no omission of oral evidence can be substituted in the documentary evidence adduced in support of the charges of defalcation and misappropriation. It appears in all probability that the delinquent Appellant expected a large number of witnesses to be examined by his employer, instead, the Department preferred to produce all the relevant documentary evidences through the Presenting Officer, Aminuddin Ahmed. It was urged that Aminuddin Ali cannot be treated as witness and the learned Single Judge was to that extent in observing that he was examined as an witness. Person or party producing documents, is not a witness in the strict sense of term, more so in a domestic enquiry. The real evidence in the instant case is the documents produced by Aminuddin. While it is true that the learned Single Judge in his judgment, in paragraph 7 has noted that one person was examined on behalf of the Department i.e. Aminuddin Ahmed who incidentally happened to be the Presenting Officer. Now production of documents by him. In the domestic enquiry cannot be legitimately objected to. The grievance which is now sought to be made is more imaginary and fanciful than real. It is not a case as if no evidence was placed on record in support of the charges, as already noted above, what possibly the accused expected did not materialised. In fact, it was not necessary that for proving each and every entry in the account book, each one person or persons making the entry should be summoned as witness. So far as violation of elementary rules of natural justice are concerned, it is a settled principle that these rules of natural justice are not a capsule formula of universal application, they vary in their applicability according to the facts of each case. Now what was required to be proved by the Department has been amply proved by producing the record and it was open to the Appellant to rebut or refute the evidence, it is not his case that the documents were received in evidence behind his back . Therefore, there is no question of any violation of rules of natural justice. The learned Single Judge has rightly observed that the writ Court, does not sit in an appeal over the decision arrived at by the authorities. What is the scope of judicial review in such matters has been recently explained by the Supreme Court referring to its earlier judgment in T.C. Basappa Vs. T. Nagappa and Another, and indicated the parameters of exercise of jurisdiction under Article 226 in Union of India (UOI) and Others Vs. Upendra Singh, ; Examining the correctness of charges levelled against a delinquent is beyond the scope of judicial review.

Dealing with the question of legality of reappreciation of evidence by the Tribunal against the finding of the Enquiry Authority, the Supreme Court in Government of Tamil Nadu and another Vs. A. Rajapandian, has held:

We have quoted above three paragraphs from the impugned order of the Administrative Tribunal to show that the Tribunal reappreciated the evidence recorded before the inquiring authority. The Administrative Tribunal reached different conclusions from the inquiring authority on its own evaluation of the evidence. The Tribunal fell into patent error and acted wholly beyond its jurisdiction. It is not necessary for us to go into the merits of appreciation of evidence by the two authorities because we are of the view that, the Administrative Tribunal had no jurisdiction to sit as an appellate authority over the findings of the inquiring authority.

In the result, this appeal fails, it is accordingly dismissed with no order as to costs.