Harish Chand vs Union of India (UOI) and Others

Rajiv Sahai Endlaw, J.—The petitioner, an employee of the Super Bazar Cooperative Store Limited preferred this petition for quashing the order dated 30th December, 1993 of the General Manager of the respondent No. 2/Super Bazar Cooperative Store Ltd. acting as the disciplinary authority. The said order was made pursuant to an inquiry held on the charge against the petitioner of stock shortages and misappropriation of goods of Super Bazar. Vide the impugned order, on the basis of the report of the inquiry officer, the petitioner was found guilty of the charge and a penalty of reduction in his grade by two stages with cumulative effect and of recovery of stock shortages of Rs. 39,314.91 was imposed on the petitioner. The said amount was ordered to be recovered by deduction of Rs. 300/- per month from the emoluments payable to the petitioner. The petitioner in the writ petition has also sought the relief of directing the respondent No. 2/Super Bazar to return the amounts so deducted from the salary of the petitioner since the month of January, 1994. The writ petition was accompanied with an application for stay of operation of the said order but no interim relief was granted in favour of the petitioner, though Rule in the writ petition was issued on 23rd April, 1997. The counsel for the petitioner states that the entire sum so stands recovered from the petitioner and the petitioner has since also attained the age of superannuation.

It appears that the petitioner had besides the present writ petition also preferred a departmental appeal against the order impugned in this petition. The said appeal was dismissed on 10th August, 1994, shortly after the institution of the present petition. Though the petitioner has thereafter amended the writ petition but no challenge in the amended petition also was made to the order of the Appellate Authority.

The petitioner has challenged the order of the Disciplinary Authority inter alia by pleading that though another person also was chargesheeted alongwith him but no inquiry was held against him; that though in the earlier memorandum of chargesheet his liability was shown to be of Rs. 36,308/-only, in the subsequent chargesheet the same was increased to Rs. 39,314.91 without any reason whatsoever; that he was not responsible for stock shortages; that there was no proper evidence against him; that he was kept under suspension without any show cause notice though Rule 72(1) of the Service & Conduct Rules provide that reasons for suspension should be supplied but no reasons were supplied to him; that the Inquiry Officer has not considered the evidence led by the petitioner and held him liable without any basis whatsoever. In the amended petition another ground of the Inquiry Officer having wrongly placed the onus on the petitioner to prove his innocence has also been taken.

The counsel for the petitioner has argued only on the aspect of the Inquiry Officer having wrongly placed the onus of proving his innocence on the petitioner. He has urged that the order of the Disciplinary Authority on the basis of the said inquiry report is liable to be set aside on this ground only. Attention is invited to a sentence in the inquiry report, "I have reached the conclusion that the CO failed to prove his innocence in the case". It is contended that it was incumbent on the charging authority to prove the charge and which had not been done. It is further contended that the petitioner was not even working in the processing unit in which shortages were found.

Per contra the counsel for the respondent No. 2/Super Bazar has contended that the writ has been mischievously filed by impleading Union of India as respondent No. 1 though neither any averment is made against it nor any relief claimed against it; that the petitioner has fully participated in the inquiry and it is not his case that he has been deprived of any hearing; that the Inquiry Officer after appreciating the entire evidence has found the petitioner guilty and the said report has been accepted by the Disciplinary Authority; that if the petitioner was dissatisfied with the findings of the inquiry and/or acceptance thereof by the Disciplinary Authority, his remedy, being a workman was to raise a industrial dispute and it is the Labour Court alone which could have revisited the findings of fact and this Court in the exercise of writ jurisdiction cannot re-appreciate the evidence. Reliance is placed on judgment dated 6th September, 2006 of this Court in Writ Petition (C) No. 6938/2001 titled Prem Singh v. The Cooperative Stores Ltd. i.e. the respondent No. 2/Super Bazar only and where it has been held that in the absence of any allegation that the rules of natural justice were not followed or full opportunity to defend was not given or the finding of the Inquiry Officer was based on no evidence, the challenge cannot be based on facts and this Court cannot substitute its finding for the finding of the Inquiry Officer. This Court had further held that in the exercise of writ jurisdiction the court cannot interfere with the punishment unless the same is so severe that it shocks the conscience of the court and that no employer can be compelled to bear with an employee in whom trust is lost. It is contended that in the present case the penalty, only of reduction and recovery of value of goods has been imposed even though the petitioner has been found guilty of similar offence as in Prem Singh (supra) and on which finding Prem Singh, the employee in that case, was dismissed from service. It is urged that this punishment cannot be said to be such so as to shock the conscience of this Court. Reliance is also placed on B.C. Chaturvedi Vs. Union of India and others, , and other judgments following the said judgment, laying down that though u/s 11A of the Industrial Disputes Act the Labour Court is entitled to apply its mind on the question of proportionality of punishment but only when the punishment/penalty is shockingly disproportionate. I find that the petitioner in its synopsis of submissions has also referred to Moni Shankar Vs. Union of India (UOI) and Another, particularly to paras 17 to 24 thereof. However, in the said case the petitioner being dissatisfied with the inquiry and the order of the Disciplinary Authority had approached the Central Administrative Tribunal and it was in that context that the Supreme Court had observed that the Tribunal was entitled to arrive at its own conclusion on the evidence adduced by the department to satisfy itself whether it meets the requirement of burden of proof. In the present case the petitioner has not approached any other authority capable of fact finding.

I have perused the report of the Inquiry Officer to gauge whether in the inquiry the onus to disprove the charge has been placed on the petitioner in as much as if it is found to be so, this Court would be entitled to interfere in the writ jurisdiction, the same being contrary to the well settled tenets of law. I find that the Inquiry Officer on an analysis of the evidence led before him on the principle of preponderance of probability has deduced the involvement of the petitioner in the day-to-day functioning of the store in which the deficit in stock was deducted. The name of the petitioner was also found in the responsibility sheet; the evidence finding the petitioner responsible for the stock was also found to be in consonance with the well settled practice of the store. The Inquiry Officer has held the charge of the petitioner being responsible to have been partly made out, holding others also to be guilty and held the petitioner liable of the charge of misconduct in accordance with the Service and Conduct Rules of the respondent No. 2/Super Bazar.

A word or a line in the report cannot be picked up and read in isolation to find fault with the inquiry report. A reading of the entire report as a whole shows that the onus of proving the charge was on the Charging Officer and was held to have been discharged by the Charging Officer. The Inquiry Officer is not a person steeped in law and cannot be expected to be familiar with and use the legal language as the lawyer and the courts are accustomed to.

As far as the argument of the petitioner of the others having been let off, the Inquiry Officer has also commented on the same. However, the same shall not affect the guilt of the petitioner. I may mention that the deficit found in stocks was of a much higher value and was attributed to the petitioner in the sum of Rs. 39,314.91 only.

I am therefore unable to find any ground to interfere in the finding of the Inquiry Officer appointed in accordance with the Service and Conduct Rules. Once the charge of misappropriation was made, the penalty imposed on the petitioner cannot be said to be such which requires interference by this Court.

There is no merit in the petition. The same is dismissed. No order as to costs.