Shri Lalit Chandra Barua vs Assam State Warehousing Corporation and Others

S.N. Phukan, J.—By this petition under Article 226 of the Constitution Petitioner who was a Warehouse Manager Gr. I under Respondent No. 1, namely, Assam State Warehousing Corporation, has challenged the following punishments awarded to him in the departmental proceeding in question. The said punishment were demotion to the rank of Warehouse Manager Gr. II fixing his pay at the initial stage of the pay-scale of the said post, debarring him from getting future promotion and recovery of an amount of Rs. 26,670.50. The Petitioner was charged under five heads. The departmental enquiry was held and the enquiry officer found him guilty of the charges and the disciplinary authority accepted the report and demoted the Petitioner to juniormost position of Gr. II Warehouse Manager. Being aggrieved, the Petitioner preferred an appeal before the appellate authority, namely, the Board of Directors of Respondent No. 1 Corporation. The appellate authority not only rejected the appeal but issued a notice on the Petitioner to show cause why the punishment should not be enhanced vide letter dated 18th July, 1983 at Annexure-X to the petition. Thereafter by order dated 14.8.84 vide Annexure. XII imposed the enhanced punishment. The main charge against the Petitioner is that between 6.9.77 and 10.9.77 he us a Warehouse Manager of the Corporation at Tezpur received rice in good condition from the Food Corporation of India, Tezpur and issued proper receipt but in respect of 898 bags of rice he did not issue any (sic) though he kept the said bags of rice unaccounted in the warehouse in contravention of the rules and instructions. Subsequently after rebaging of said unaccounted bags of rice, 197 quintals 18 K. Gs and 500 grams being the contents of 221 bags valued at Rs. 26,670.5O were found short.

The first contention of Mr. Phukan, learned Counsel for the Petitioner, is that the enquiry was vitiated being violative of the principle of natural justice, inasmuch as, the Petitioner was not given chance to examine the records and the enquiry officer did not allow the Petitioner to examine two witnesses. In support, Mr. Phukan has drawn our attention to a decision of this Court in Dr. Tarini Chandra Deka v. The Gauhati University and Ors. ILR 1981 Gau 72. The above decision was rendered by one of us (Hansaria, J.) and this Court found that there was violation of principle of natural justice in the departmental enquiry, inasmuch as, the delinquent lecturer was denied the opportunity of referring to important documents favourable to him and defence witnesses as requested were not examined. There cannot be any dispute if in departmental proceeding the delinquent officer was not given adequate opportunity to peruse the documents or his witnesses were not examined there is violation of principle of natural justice.

Coming to the case in hand, we find from the record that Petitioner requested the enquiry officer to examine three witnesses in support of the case, vir., (1) Upen Barman, Salesmen-cum-peon, (2) Jita Mahtoo, night-watchman and (3) Khageswer Das, L.D. Assistant. Mr. Deka, learned Counsel for the Respondents has rightly drawn our attention that the enquiry officer examined @ Jita Mahtoo a defence witness but examination of Upen Barman and Khageswer Das was not necessary at they had been examined as witnesses for the the Corporation. We have perused the record and we find that Khageswar Das was examined as witness No. 3 and Upen Barman was examined as witness No. 4. Situated thus, we are of the opinion, reexamination of there two witnesses was not necessary and the enquiry officer rightly refused to examine these two witnesses.

Mr. Phukan has submitted that the prayer for adjournment by the Petitioner on health ground was rejected without recording any reason and as a result some witnesses could not be cross-examined. We find from record and also from the report of the enquiry officer that the Petitioner was afforded an opportunity to cross-examine the witnesses, who were examined in his absence, but this offer was not accepted by the Petitioner. We, therefore, find no violation of the principle of natural justice as the Petitioner himself refused to cross examine the said witnesses.

Regarding examination of records by the Petitioner Mr. Deka has drawn our attention to the records of the enquiry proceeding and also report of the enquiry officer to show that Petitioner was given a chance to examine the record at Gauhati and also at Tezpur. We are, therefore, unable to accept the contention of Mr. Phukan that Petitioner was denied the opportunity of examining the record.

Mr. Phukan has submitted that the present departmental proceeding was drawn up on the basis of an enquiry conducted by C.B.I. but the enquiry report was not supplied. We have perused the records move particularly the findings of the enquiry officer and we find that the report of the C.B.I. was not taken into consideration during the departmental proceeding, and as such, non-supply of the said report did not cause any prejudice to the Petitioner.

Mr. Phukan has submitted that the appellate authority exceeded its jurisdiction by enhancing the punishment. The power of the appellate authority has been defined in Sub-regulation (b) of Regulation 26 of the Assam State Ware Housing Corporation (Staff) Regulations, 1980 which runs as follows:

(b). The appellate authority shall have the power to alter, modify or rescind the order passed by the disciplinary authority.

Mr. Deka has strenuously urged that the word ''alter'' includes the power to enhance the punishment awarded by the disciplinary authority. Mr. Phukan has urged that whenever power to enhance the sentence by the appellate authority is contemplated by the rule-makers it is specifically provided in the Rules. In this connection Mr. Phukan has drawn our attention to Rule 23(2)(c)(i) of Assam Services (Discipline and Appeal) Rules, 1964. This Rule specifically empowers the appellate authority to enhance the penalty. But no such power has been conferred on the appellate authority by Regulation No. 26(b) of the Assam State Ware Housing Corporation (Staff) Regulation, 1980. We find considerable force is the contention of Mr. Phukan and bold that in absence of specific provision the appellate authority cannot enhance any punishment awarded by the disciplinary authority.

By the orders of the appellate authority three punishments were awarded as stated above. In our opinion, the appellate authority erred in law by awarding three punishments to the Petitioner.

Mr. Phukan has urged that the appellate order is liable to be quashed as it is not a speaking order. It is a settled law that not only quasi-judicial authority even executive authority has to pass a reasoned order when it affects rights of parties, which is not so in the present case and on this count also the impugned appellate order is liable to be quashed, which we hereby do.

Mr. Phukan has urged that the reports of the enquiry officer is perverse and not based on record and in support he has placed reliance on some of the documents and the following findings of the enquiry officer:

The allegations of non-cooperation of the FCI staff at Tezpur are nothing but is an attempt to hide his misdeeds and his plea for not informing the local officials of the FCI in writing is only an eye-wash, i.e. to divert attention from this nefarious.

In this connection Mr. Phukan has drawn our attention to the letter dated 26.9.1977 addressed to the Assistant Manager (QC, FCI, Tezpur) with copies to Regional Manager, District Manager and Depot-in-Charge, Tezpur, F.C.I. and Managing Director of the Respondent No. 1. In this letter the Petitioner clearly informed that the ''damaged stocks'' were lying since 6.9.1977 and no steps were taken by the FCI for immediate segregation. This letter is also available is the record of the departmental proceeding. Mr. Phukan his also drawn our attention to the letter from the Managing Director of the Respondent-Corporation to the District Manager, F.C.I. dated 9.4.1978 vide Annexure-XV annexed to the affidavit-in reply of the Petitioner copy of which is available in the record of the enquiry proceeding. According to Mr. Phukan this letter clearly shows that the Managing Director was aware of the situation regarding damaged stocks of rice kept in the warehouse. There is mother letter available in the record of the enquiry proceeding dated 17th September, 1977 from the Managing Director 40 the Petitioner regarding steps to be taken for the bags in question. According to Mr. Phukan these letters clearly indicate that the Managing Director was not only aware that the Petitioner kept the damaged rice without issuing receipt but also asked the F.C.I. to take steps for segregation to the bags. According to Mr. Phukan it was the practice prevailing at the relevant time to keep such damage bags in the ware-house without issuing proper receipt and in this connection Mr. Phukan has drawn our attention to a Circular dated 18.12.1979 at Annexure-XVI, annexed to the affidavit-in-reply on behalf of the Petitioner, issued by the Managing Director to all Warehouse Managers/Technical Assistants.

We have perused the records and also the documents referred to by Mr. Phukan. Even though the Petitioner as Warehouse Manager could have refused to accept 898 bags of damaged rice the fact remains that he allowed the F.C.I. to keep these bags in the Warehouse, and as such, it was his duty to keep these bags under safe custody. There is no dispute that after rebaging of the said damaged bags for which no receipt was granted by the Petitioner 197 Qntls. 18 kgs and 500 Grams being the contents of 221 damaged bags valued at Rs. 26,670.50 were found short. As this shortage was found while the bags were kept in the warehouse under the control of the Petitioner cannot now take the plea that he was not responsible for the above shortage resulting financial loss to the Corporation.

We are therefore, of the opinion that the Petitioner is responsible for the above shortage of rice. It is settled law as laid down by the Apex Court that punishment in a departmental proceeding must be proportionate to the charge proved. In the instant case though the Petitioner was not officially bound to accept the damaged bags from the F.C.I. he having accepted the bags is responsible for the financial loss of the Corporation on that count. But this negligence on the Petitioner docs not, in our opinion, warrant punishment of reduction in rank which has been awarded by the disciplinary authority, as this punishment is disproportionate. As due to inaction of the Petitioner the Respondent-Corporation suffered financial loss, we are of the opinion that ordering realisation of the loss of the Corporation i.e. Rs. 26,670. 50 (Rupees twenty six thousand six hundred seventy and fifty paise) from the Petitioner would meet the ends of justice. We are aware that the jurisdiction of Writ Court being supervisory in nature, it being not an appellate Court, the proper authority for modifying the punishment would be the disciplines authority. We have modified the above punishment, in view of the fact that the occurrence took place in the year 1977 and the disciplinary authority awarded the punishment in May, 1982, and it would not be in the interest of justice to direct the disciplinary authority to reconsider and modify the punishment after lapse of more than 6 years.

From what has been stated above, we set aside the appellate order dated 14.8.84. (vide Annexure-XII to the petition) passed by the Board of Directors of the Respondent Corporation. We also set aside the punishment awarded by the Disciplinary Authority and we direct that the Respondent Corporation-shall be entitled to realise the above sum of Rs. 26,670.50 (Rupees twenty six thousand six hundred seventy and paise fifty) by deducting an equitable monthly instalment from the pay of the Petitioner.

In the result, the petition is partly allowed, parties to bear their own costs.