Seikh Azad Ali vs State of Assam and Others

A.K. Patnaik, J.—In this application under Article 226 of the Constitution, the Petitioner has prayed for quashing the order dated 25.7.1994 of the Disciplinary Authority dismissing the Petitioner from service and has prayed for a direction on the Respondents to reinstate him in service with full consequential benefits.

The facts briefly are that while the Petitioner was serving as Assistant Executive Engineer in Dhemaji TandT Sub-Division under the Assam State Electricity Board (For short the ''ASEB''), he received an order dated 22.9.1993 of the Chairman of the ASEB asking him to show cause under Regulation 10 of the ASEB (General Service) Regulations, 1960 as to why he should not be penalised if the charges mentioned in the said order are established against him. Along with the said order dated 22.9.1993, a statement of allegations on which the charges were based was also enclosed. According to the said statement of allegations, on 26.7.1993 the Petitioner had issued under Challan No. 46160 5.9 KM of Panther Conductor to the Assistant Executive Engineer, TandT Sub-Division, Guwahati and the said Conductor was allowed to be carried by a private truck No. AS-14-0595 and there was no approval of the higher authority for such issue of inter-divisional indent and for transport of the materials of the ASEB in a private truck. The said truck was seized by the police on 27.7.1993 and the Petitioner was asked to furnish details regarding issue of the Conductor by him with all relevant records, but the Petitioner failed to produce the same by 28.7.1993. On the basis of the aforesaid statement of allegations, the three charges framed against the Petitioner were that he committed fraud or/and dishonesty in connection with the business of the Board or its property, he committed breach of law applicable to the ASEB and he committed breach of ASEB Officers'' (Conduct) Regulations, 1982. By the said order dated 22.9.1993 the Petitioner was asked to submit written statement in his defence. The Petitioner submitted his written statement of his defence to the Chairman of the ASEB under his letter dated 15.10.1993. But the said defence of the Petitioner was not accepted. An inquiry was held and inquiry report was submitted by the Inquiry Officer Sri P.L. Bhuyan holding the Petitioner guilty of all the aforesaid charges. The Chairman of the ASEB then issued a show cause notice dated 11.7.1994 to the Petitioner asking him to show cause as to why the penalty of dismissal from service should not be inflicted upon him and along with the said show cause notice, a copy of the Inquiry Officer''s report together with the record of evidence were sent to the Petitioner. The Petitioner submitted his show cause, but by the impugned order dated 25.7.1994 the Chairman of the ASEB dismissed the Petitioner from service with immediate effect. Against the said impugned order dated 25.7.1994 the Petitioner filed an appeal petition dated 12.8.1994 but on 14.10.1994 the Board adopted resolution to the effect that punishment inflicted on the Petitioner was appropriate considering the gravity of the offence. Aggrieved, the Petitioner has moved this Court for appropriate relief.

Mr G.K. Bhattacharjee, learned Counsel for the Petitioner submitted that the Petitioner''s defence against the charges was that on 26.7.1993 he was informed at his rented house at North Lakhimpur that one truck had come from Guwahati Trans-Sub-division for emergency maintenance work and he left for Dhemaji by bus, but when he got down at Gogamukh due to the restriction on movement of heavy vehicles he saw the Private truck No. AS-14-0595 waiting there and one person showed indent which was issued by the Assistant Executive Engineer of Trans-Sub-division, Guwahati. When he refused to accept the indent and go to Dhemaji some people threatened him to kill him and harm his wife at Lakhimpur and considering safety and security of his family he was compelled to go to Dhemaji and issue the Conductor and allow the materials to be loaded in the truck. Mr Bhattacharjee further submitted that in support of this defence the Petitioner also led evidence of three witnesses Sri Miblu Hazarika, Sri Manoj Borah and Sri Krishna Dutta. He also pointed out that the Executive Engineer, North Lakhimpur TandT Division in his evidence before the Inquiry Officer has admitted that the Petitioner had informed him in his residence after 6 and 7 days of the incident that great pressure was put on him to issue the conductor. But the aforesaid defence and the evidence adduced by the Petitioner have been totally ignored both by the Inquiry Officer and the Disciplinary Authority. According to Mr Bhattacharjee, the Inquiry Officer and the Disciplinary Authority have not taken into consideration relevan factors namely the aforesaid defence and evidence in support of the defence while recording their respective findings of guilt against the Petitioner and, therefore, their findings of guilt against the Petitioner are liable to be quashed by this Court in exercise of its power of judicial review. He cited the decision of the Supreme Court in Union of India and another Vs. G. Ganayutham (Dead) by LRs., in which the Supreme Court following the Wednesbury case held that while examining ''reasonableness'' of an administrative decision, the Court has to find out if the administrator has left out the relevant factors.

In reply, Mr N.N. Saikia, learned Counsel for the Respondents contended that the whole defence of the Petitioner that he issued the Conductor and allowed the same to be loaded in a private truck under threat to his life and his family was an after thought and had not been believed by the Inquiry Officer and the Disciplinary Authority. He submitted that soon after the private truck carrying the conductor was seized on 27.8.1993, the Petitioner was asked by his Executive Engineer to explain and produce relevant records but he did not mention about any such threat to the Executive Engineer and instead produce a false challan before him. Mr Saikia submitted that it has now been well settled that the findings of the Disciplinary Authority and the Appellate Authority cannot be interfered with by the Court in exercise of its power of judicial review so long as the said findings are based on some evidence or material. In support of this submission, he cited the decisions of the Supreme Court in B.C. Chaturvedi Vs. Union of India and others, and Supreme Court in Tamil Nadu v. K.N. Ramamurthy (1997) SCC 101 as well as a decision of this Court in Bidhan Chandra Dutta v. Assam State Electricity Board and Ors. (1998) 3 GLR 49. (1998) (3) GLT 492 ).

The sole question to be decided in this writ petition is whether the defence of the Petitioner in the disciplinary proceedings that he had issued the Conductor and allowed the Conductor to be loaded in a private truck under threat to his life and his family on 27.6.1993 at Gogamukh before he reached Dhemaji and the evidence that he had led in support of his aforesaid defence have been considered by the Inquiry Officer and the Disciplinary Authority. Relevant portions from the inquiry report where the Inquiry Officer has dealt with the defence plea of the Petitioner are extracted herein below:

The defence pleas of the opposite party may now be examined. The opposite party has confirmed in his written statement in reply to the show cause notice that he issued the panther conductor as mentioned in the charge but he did it under pressure and threat. Some unknown persons threatened him verbally and dragged him their truck which was taken to Dhemaji Store wherefrom he issued the materials against indent No. 67332 dated 17.7.1993. These unidentified persons also threatened him not to disclose the matter to any body. In case he did not oblige, he and his wife would be killed. On 26.7.1993 he could not report to any body as he was kept under observation by the miscreants. On 27.7.1993 he went to his office for filing a report to police but on the way he was prevented from going to office and two youths dragged him. On 26.7.1993, the eight management witnesses who saw lifting of the materials under supervision of the opposite party did not notice any sign of threat or pressure put to the opposite party. On 7.7.1993 and 28.7.1993 he did not tell the Executive Engineer that the material were lifted by force by some unidentified persons. He furnished to the Executive Engineer the false challan as genuine.

The evidence of 3 defence witnesses does not establish anything. Defence witness Miblu Hazarika who was informed of the matter by the opposite party states that he wrote to Tezpur or Biswanath Police to seize the truck with Board''s materials. From cross examination it appears that he is tutored witness. The evidence of other two witnesses also does not establish anything to prove bona fides of the opposite party. Another contention of the opposite party is that the materials taken forcibly had been recovered and taken to Sub-division store, so no loss occurred to the Board. Thereby he means that he is not guilty of causing any loss to the Board.

A careful examination of the evidence of management witnesses Shri Dutta and the supporting evidence of other eight witnesses who were eye witnesses of the lifting of the material of the Board under the supervision of the opposite party will show that the defence contention of issuing the materials under threat and pressure is an after thought and escape route to shirk responsibility of a calculated mala fide action to defraud the Board.

It is thus clear from the aforesaid extracts from the inquiry report that the Inquiry Officer has considered the defence of the Petitioner that some unknown persons threatened him verbally and dragged him to the truck which was taken to the Dhemaji Store wherefrom he issued the materials against Indent No. 67332 dated 17.3.1993. The Inquiry Officer was well aware of the defence of the Petitioner that he was threatened before went to Dhemaji Store to issue the materials and yet rejected the said defence because the eight management witnesses who saw the lifting of the material on 26.7.1993 under the supervision of the Petitioner did not notice any sign of threat or pressure on the Petitioner and because the Petitioner did not tell the Executive Engineer on 27.7.1993 and 28.7.1993 that the materials were lifted by force by some unidentified persons and instead furnished to the Executive Engineer the false challan as genuine. The aforesaid extract further shows that the Inquiry Officer also considered the evidence of the three defence witnesses, namely, Sri Miblu Hazarika, Sri Manoj Borah and Sri Krishna Dutta, but he found the evidence of Sri Miblu Hazarika as tutored and the evidence of Sri Manoj Borah and Sri Krishna Dutta was not supporting the bonafide of the Petitioner. The Inquiry Officer, therefore, has considered the defence of the Petitioner that he issued the materials under threat which was given to him before he arrived at the Dhemaji Store as well as the evidence led by the Petitioner in support of the said defence, but has rejected the defence of the Petitioner on the basis of the mterials or evidence in the inquiry. It is, therefore, not a case where the defence of the Petitioner had not been considered as has been contended by Mr Bhattacharjee, learned Counsel for the Petitioner, but is a case where the defence of the Petitioner has been considered and rejected on the basis of the evidence or materials in the inquiry.

When the Disciplinary Authority proposed to act on the aforesaid findings of the Inquiry Officer and issued show cause notice dated 11th July ''94, the Petitioner reiterated before the Disciplinary Authority his aforesaid defence that he had issued conductor under threat and the Disciplinary Authority considered the said defence in the following manner:

...In response, the officer was heard on 22nd July, 1994. He also submitted a written statement in both the hearing and the written submission. He has repeated the assertion of having been under threat which he had made in the course of the enquiry. I have gone through the statement and submission, the records of the case and the report of the Enquiry Officer, I do not find even the minimum of indication that it was a threat which made the officer do a most disloyal act against the Board. None of the employees who have given evidence and who were present at the time of loading have indicated in any manner that the officer behave as if he was under threat. There is also no indication of the officer having informed his seniors of his being under threat or coercion. The matter came to light only because it so happened that the police at the check post stopped the truck and finding the circumstances suspicious, initiated appropriate action. In the circumstances, I do not find any extenuating factor. Therefore, it is decided that the Assistant Executive Engineer Sekh Azad Ali is dismissed from service. Accordingly, Sekh Azad Ali is dismissed from service with immediate effect.

It would be clear from the aforesaid findings of the Disciplinary authority that he considered the defence of the Petitioner that he had issued the conductor under threat but rejected the said defence after having gone through the records of the case and the report of the Inquiry Officer. The Disciplinary Authority has further held that none of the employees who had given evidence and who were present at the time of loading had indicated that the Petitioner behaved as if he was under threat and that there was no indication of the officer having informed his seniors of his being under-threat or coercion. The contention of Mr Bhattacharyya, therefore, that the defence of the Petitioner that he had issued the conductor under threat to his life and his family has not been considered by the Disciplinary Authority is not at all correct. The said defence of the Petitioner had been considered but rejected by the Disciplinary Authority on the basis of the materials or evidence in the inquiry. The decision of the Supreme Court in Union of India and Anr. v. G. Ganayutham (supra) that the Court will interfere with if the administrator had left out relevant factors has no application to the fact of the present case.

In BC Chaturvedi v. Union of India and Ors.(supra), the Supreme Court had held that the Disciplinary Authority is the sole judge of facts and where an appeal is presented, the Appellate Authority has co-extensive power to reappreciate the evidence or the nature of punishment and adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the court or tribunal. Similarly, in Supreme Court of Tamil Nadu v. KN Ramamurthy (supra), the Supreme Court has held that in case of charges framed in a disciplinary inquiry, the tribunal has no jurisdiction to go into the correctness or truth of the charges and the tribunal cannot take over the function of the Disciplinary Authority. In Bidhan Chandra Dutta v. Assam State Electricity Board and Ors. (supra), this Court has held that the scope of judicial review in a disciplinary proceeding is very limited and that it is for the Disciplinary Authority to go into the truth or otherwise of the charges against the delinquent employee and to impose punishment proportionate to the misconduct committed by the delinquent employee and that the Court will not interfere with the finding of guilt recorded by the Disciplinary Authority so long as the said finding is based on some materials and will also not interfere with the punishment inflicted by the Disciplinary Authority unless the punishment compared to the misconduct committed by the delinquent employee is such as would shock the judicial conscience of the Court. In the case in hand, since the finding of guilt recorded by the Disciplinary Authority against the Petitioner was based on materials or evidence in the inquiry and the punishment compared to the misconduct established against the Petitioner in the disciplinary proceeding was not one which would shock the judicial conscience of the Court, it is not a fit case in which the Court should interfere with the impugned order of dismissal.

In the result, the writ petition has no merit and is accordingly dismissed. Considering however the facts and circumstances of the case, the parties shall bear their own costs.