Kanteswar Rajbongshi vs Statfed and Others

J.N. Sarma, J.—This writ application has been filed to issue of a mandamus to quash the order dated 2.4.96 passed by the Managing Director, STATFED with a further prayer to direct payment of backwages along with other benefits for the post of Godown Assistant on and from 19.3.94. The Petitioner herein was a Godown Assistant and on 19th March, 1994 an order of suspension was passed as against him. The relevant portion of that order is quoted below:

Whereas on perusal of the records it appears that Shri Kanteswar Rajbongshi, Godown Assistant, STATFED Head Office Shopping Corner while he was functioning as I/c, Wholesale Counter during the period from 1.4.93 to 12.2.94 has misappropriated a stock worth Rs. 48,509.00 (Rupees forty eight thousand five hundred nine) only.

Thereafter, charge sheet was issued along with the statement of allegations, lists of documents and also the list of witnesses i.e. annexure-2 to the writ application. The Petitioner submitted his reply vide Annexure-3. In the reply he highlighted that there was shortage in the godown, but that was because of the fact that he had to shift certain items at the behest of the superior officer. The Petitioner examined 4 witnesses in support of his case. It was the finding that during the period the Petitioner was incharge of the Wholesale counter of Head Office Shopping Corner from 1.4.93 to 12.2.94. There was shortage of stock worth Rs. 48,509.00 and it was further found that the delinquent officer is accountable for the misappropriation of the stocks which was duly instructed to him. A copy of the enquiry report was furnished to the Petitioner vide Annexure-5 to the writ application informing him to submit reply. Vide Annexure-6 the Petitioner submitted his reply and thereafter vide Annexure-7, the disciplinary authority i.e. Managing Director, STATFED having agreed with the findings, passed the order of punishment by which the Petitioner was demoted to the post of Night Chowkidar with immediate effect. It was further ordered that the misappropriated amount will be realised from his pay @ Rs. 1,000/- p.m. The period of suspension was treated as not on duty and financial benefits for the period of suspension was limited to the subsistence allowance already drawn by him. The Petitioner submitted an appeal vide Annexure-8, but the appeal was not disposed of as yet. Hence this writ application.

I have heard Mr. S.P. Roy, learned Counsel for the Petitioner, Mr. RC. Deka, learned Counsel for STATFED and also GA for State of Assam. An affidavit-in-opposition has been filed on behalf of Respondents 1, 2 and 3. Mr. S.R Roy, learned Counsel for Petitioner makes the following submissions:

That the departmental witnesses were not examined and no records were produced to substantiate the charges.

As the departmental witnesses were not produced, the Petitioner was not in a position to cross-examine the witnesses which violates the Rule 9 of the Assam Services (Dis & Appl) Rules, 1964.

The evidence adduced by the Petitioner before the departmental enquiry were not at all discussed.

The enquiry report as well as the order by which the Petitioner was punished is not a speaking order and the punishment is disproportionate to the gravity of the offence.

Let us take up point Nos. 1 and 2 together. Rule 9 of the Assam Services (Dis & Appl) Rules, 1964 (hereinafter called ''Rules of 1964'' for the sake of brevity) provides for imposing penalty. Sub-Rule (1) provides mat no order imposing penalties shall be passed except after an enquiry held as far as may be in the manner hereinafter provided. Sub-rule(2) provides for framing of charges on the basis of allegations and also the list of witnesses. Sub-rule (3) provides for inspection of documents. Sub-rule (4) provides for appointment of Inquiring Officer. Sub-rule (5) provides for nomination of Presenting Officer as well as defence assistance. Sub-rule (6) provides that in the course of enquiry, the Inquiry Authority shall consider documentary evidence and take oral evidence as may be relevant or material in regard to the charges. So, it is not the mandate that the Inquiring authority must take oral evidence and if the charges can be brought home without examining witnesses, that may be done. In this particular case, from a bare perusal of the enquiry report at Annexure-4 to the writ application particularly at paragraph

7 it is seen as follows:

I have gone through all the relevant documents and recorded statements given by the delinquent officer and the witness. The delinquent officer and the witness were cross examined and noted.

In the deposition given by the Petitioner which was recorded by the Inquiring Officer, shortages have been admitted by him. That statement is available in the record at page 47 of the record. The other witnesses also admitted that certain goods were not brought to STATFED, but were unloaded at different places. So, a bare perusal of the statement of the witnesses of the defence will establish the charges of shortage. So, regarding point No. 3 urged by the learned Counsel that the evidence adduced by the Petitioner before the departmental enquiry were not at all discussed, I have perused the evidence recorded by the Enquiry Officer in order to find out whether failure to discuss the statement of this witnesses (Petitioner) has caused substantive failure of justice. On perusal of the same I do not find that to be the position. So, this contention also shall fall through. Regarding 4th ground urged by the learned Counsel that the enquiry report and the order by which the Petitioner was punished is not a speaking order and that punishment is disproportionate to the gravity of the offence cannot be accepted. I have perused the order of punishment. The disciplinary authority considered everything and has agreed with the findings of the enquiry officer.

The learned Counsel for Petitioner places reliance on the following decisions:

AIR 1972 Gau 2 TS Srivastava v. State of Assam and Ors. That was a case where a Single Bench of this Court held that the procedure laid down in Rule 9 is mandatory and has to be followed even in the case of imposing minor penalties. These rules have been made in order to ensure security of the service and cannot be allowed to be by-passed or observed in a casual and mechanical way. This judgment is squarely binding on me, but the question is that the learned Counsel for Petitioner fails to draw my attention regarding violation and/or deviation from Rule 9. So, this case does not help the Petitioner.

The next case relied on (1995) 2 GLR 383 Jalaluddin Laskar v. The State of Assam and three Ors. In that case, a Single Judge of this Court pointed out that if the findings of the enquiry officer is based on no evidence, the findings can be quashed by exercise powers of judicial review under Art 226 of the Constiutiton. That is not the position in the case in hand. As indicated above, in the statement given by the delinquent officer, there is an admission with regard to the shortage and that was rightly taken into account by the disciplianry authority as well as by the enquiry officer.

The next case is (1990) 1 GLR 298 Lalit Chandra Barua v. Assam State Warehousing Corporation and two Ors. ) wherein a Division bench of this Court pointed out that if a punishment is awarded in a disciplinary proceeding without giving any chance to examine the records and to examine the witnesses it amounts to violation of principle of natural justice and punishment can be quashed. That also is not the position in the case in hand.

(1983 2 GLR 445 Ram Subal Nonia v. Union Territory of Mizoram and Ors. wherein this Court pointed out as follows:

A departmental enquiry is not merely an

empty formality. It should be followed strictly as the life and property of an individual depends on dismissal, removal and/or reduction in rank. We are tempted to quote a recent decision in which their Board of Trustees of the Port of Bombay Vs. Dilipkumar Raghavendranath Nadkarni and Others, expressed how Article 21 is inextricably mixed up with the object of Article 311 of the Constitution and any breach causing prejudiced or sufferings to a Government servant tentamounts to breach of the fundamental right enriched in Article 21 of the Constitution.

This case also does not help the Petitioner.

The next case is Punjab State Civil Supplies Corporation Ltd. Chandigarh and others Vs. Narinder Singh Nirdosh, That is a case with regard to punishment to be imposed. In para 4 the Apex Court held a follows:

In view of the settled legal position that the disciplinary authority, on the basis of the magnitude of the misconduct is empowered to impose the punishment appropriate to the situation, the High Court is unjustified in interfering with the punishment of revision, as most lenient view was taken by the Government. The nature of the punishment depends upon the magnitude of the misconduct. Since the misconduct in question is a grave one and the punishment of reversion itself being a very lenient one, the High Court is wholly incorrect in reducing the punishment which is not at all warranted in law.

In the same volume at page 478, there is Anr. case with regard to punishment and there the Supreme Court pointed out that the imposition of penalties is the right of the disciplinary authority consistent with the magnitude of misconduct and evidence in support thereof.

That being the position, there is no merit in this writ application and the same is dismissed. I leave the parties to bear their own costs. Records produced by Mr. P.C. Deka, learned Counsel shall be returned to him immediately.