Amrik Singh vs State of Punjab

Tejinder Singh Dhindsa, J.—The petitioner, who is a retired Inspector Grade-I from the Department of Food, Civil Supplies and Consumer Affairs, Punjab, questions the validity of order dated 16.3.2011, Annexure P6, whereby a recovery of Rs. 9,51,001/- has been directed against him. Brief facts leading to the filing of the instant writ petition are that the petitioner along with certain other employees was issued charge memo dated 19.5.2005 under Rule 8 of the Punjab Civil Services (Punishment and Appeal) Rules, 1970 levelling an article of charge that while serving at P.R. Centre, Bareta, a loss in the stock of wheat relating to crop year 2002-2003 had been found upon physical verification having been conducted. Upon having found the reply furnished by the petitioner to the charge sheet as unsatisfactory, an Enquiry Officer was appointed vide order dated 30.6.2006. Enquiry report was furnished on 4.7.2007 in terms of which Shri Prem Chand Goyal, D.F.S.C. was exonerated but the petitioner as also one Jagsir Singh, Inspector Grade-I (since deceased) were found guilty. It is based upon such enquiry report that the Director, Food Civil Supplies and Consumer Affairs Department, Punjab has passed the impugned order dated 16.3.2011 holding the petitioner along with late Jagsir Singh to be responsible for loss quantified at Rs. 15,85,002/- and, accordingly, has apportioned 60% of such loss i.e. Rs. 9,51,001/- to be recovered from the petitioner. The balance 40% has been taken as "bad debts" on account of Jagsir Singh, Inspector, Grade-II having expired on 16.4.2009.

Learned counsel appearing for the petitioner would vehemently argue that the enquiry findings returned against the petitioner are without any basis as the petitioner had been absent from duty from 1.1.2003 to 12.2.2004 and as such, could not have been made liable for any loss of stock of wheat stored at Bareta Centre for the year 2002-2003. Learned counsel would submit that the initiation of the departmental proceedings against the petitioner and which finally culminated in the passing of the impugned order was based on a physical verification of Bareta Centre conducted by Shri K.K. Kohli, D.F.S.O., Mansa on 25.4.2003 when the petitioner was not even present. Heavy reliance has been placed upon an order dated 9.2.2007 passed by the Director of the respondent-Department at Annexure P2 in terms of which after holding an enquiry, the petitioner had been found guilty of absence from duty from 8.2.2003 to 28.12.2003 and from 30.12.2003 to 12.2.2004 and, accordingly, for such period of absence from duty, the petitioner was imposed the punishment of denial of salary as also pensionary benefits. It has been vehemently contended on behalf of the petitioner that once the Department itself has held the petitioner to be guilty of absence from duty for a particular period and having already meted out a penalty in this regard, the impugned order of recovery cannot sustain as the same is in relation to a charge of shortage of wheat stock for the same very period. Learned counsel has also adverted to the document placed on record at Annexure P3 dated 8.1.2003 in terms of which the petitioner had handed over the complete charge of Bareta Centre to Jagsir Singh, Inspector Grade-II, Bareta. It has been argued that the defence of the petitioner has been brushed aside by the Enquiry Officer without any basis.

Per contra, learned State counsel would state that the impugned order dated 16.3.2011 has been passed after following the due process of law i.e. conduct of a regular departmental enquiry in which the petitioner was associated at each stage. The recovery directed against the petitioner has been justified by submitting that he was responsible for the safe storage and maintenance of the wheat stock at the Centre in question and by remaining willfully absent from duty, the petitioner cannot be absolved of his responsibility. As such, it is submitted that the State is entitled to recover the huge monetary loss that has occurred.

Learned counsel for the parties have been heard at length and pleadings on record have been perused.

A perusal of the impugned order would reveal that a copy of the enquiry report had been made available to the petitioner so as to grant to him an opportunity to submit objections thereto. Apparently, the petitioner did not submit any objections. The petitioner also did not avail the opportunity of personal hearing that had been granted to him. Such fact has heavily weighed with the Disciplinary Authority while passing the impugned order as it had been recorded in the following terms:

"The act of the employee by not giving written reply to the enquiry report and non-presence at the time of personal hearing proves that he accepts the allegations levelled on him."

It is by now well settled that charges in the departmental proceedings are not required to be proved like a criminal trial i.e. beyond all reasonable doubts. However, the Enquiry Officer performs a quasi-judicial function and it is upon analyzing the documents, he must arrive at a conclusion that there has been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, the Enquiry Officer cannot take into consideration any irrelevant fact and likewise cannot refuse to consider the relevant facts. He cannot shift the burden of proof and cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures.

It would be obligatory for the Disciplinary Authority to examine the findings of the Enquiry Officer against the backdrop of such settled principles governing the conduct of a departmental enquiry. It is only thereafter that action can be taken against the delinquent based upon the enquiry report. In the facts of the present case, the impugned order does not disclose any application of mind at the hands of the Disciplinary Authority in terms of reasons having been recorded that the findings of the Enquiry Officer are well-founded. The impugned order merely reproduces the findings of the Enquiry Officer. Merely because the petitioner has chosen not to file objections to the enquiry report would not absolve the Disciplinary Authority in undertaking such exercise. It may not be understood that the Disciplinary Authority has to record independent findings on each charge on the basis of evidence adduced before the enquiry proceedings. The requirement would be to delve into the matter and to be satisfied that the findings returned against the delinquent are based on some cogent material. Such a requirement would be an important safeguard to ensure observance of the rule of law and to check the introduction of extraneous or irrelevant considerations and would also minimize arbitrariness in the decision making process. Such exercise has not been undertaken by the Disciplinary Authority in the facts of the present case.

I am of the considered view that this is a fit case for remand.

The writ petition is, accordingly, allowed. The impugned order dated 16.3.2011, Annexure P6, is quashed. The matter is remanded to respondent No. 2 to pass an order afresh keeping in mind the observations contained in this order. Let such an exercise be completed within a period of two months from the date of receipt of a certified copy of the order.

Liberty is granted to the petitioner to submit written submissions/defence within a period of two weeks which would be considered by the Competent Authority prior to passing of the order afresh. Petition allowed in the aforesaid terms.