Swapan Kumar Kar vs Food Corporation Of India & Ors

Amrita Sinha, J

The order of the Appellate Authority dated 22nd March, 2011 refusing to interfere with the order of penalty imposed upon the petitioner by the Disciplinary Authority on 23rd November, 2009 is under challenge in the instant writ petition.

The petitioner was an employee of the Food Corporation of India (FCI for short). He was serving as the Assistant Grade - I (Depot). A charge sheet was served upon him on 26th November, 2005 on the ground of gross misconduct or misbehaviour. As many as eight charges were levelled against him. The petitioner was directed to submit his written statement of defence within ten days. He was also requested to state whether he desired to be heard in person. The petitioner was further informed that an enquiry will be held in respect of the charges that are not admitted by him.

Prior to issuance of the said charge sheet surprise inspections were conducted by the Vigilance squad in the hired godown at Jorethang (Sikkim) which was under the District Manager, Food Corporation of India, Gangtok on diverse dates. The petitioner was the unit-in-charge of the said godown. Huge scale misappropriation/shortage of stock was detected.

The petitioner made a confessional statement on 21st October, 2002 that he suo motu owned the full responsibility of the entire shortage, and he further undertook to reimburse the full cost of shortages to the FCI in instalments. According to the petitioner no other official of FCI was responsible for the shortages.

The headquarter vigilance squad was of the firm opinion that the quantum of misappropriation was extremely high and the same could not have been done by the petitioner alone. The vigilance squad opined that the same was an act of connivance from the level of entire depot staff including the District Manager and the Contractor.

An investigation team attached to the vigilance section of the Regional Office visited the depot at Jorethang on 22nd October, 2002. The investigation team after verifying the stocks found huge shortage. The team observed that the entries were not up to date. The petitioner being the depot-in-charge maintained the depot records alone, although there was four other staff posted at the said depot.

It was further observed that the petitioner was posted at the Jorethang depot for more than ten years and was working in the capacity of depot-in-charge for the last six years. There was no record available regarding theft/pilferage cases in the last ten years even though there was not a single watchman posted at the said depot. The team was of the opinion that the petitioner was responsible for the shortage of stocks. Strict disciplinary action was recommended against the petitioner for the shortages.

A disciplinary proceeding was initiated against the petitioner. An inquiry officer was appointed. The parties led their evidence before the inquiry officer. The inquiry officer filed his report on 15th April, 2009. The inquiry officer concluded that, the petitioner being the custodian of the stocks, failed to maintain the records of the depot, and he allowed the books of accounts to remain in errors, in spite of having four more assistants to assist him. Such lapses amount to dereliction of duty, with ulterior motive and mala fide intention for manipulation. The loss caused to the FCI cannot take place without mala fide intention and wrongful interference of the petitioner.

The inquiry officer found the petitioner guilty of all the charges levelled against him. The inquiry report was duly forwarded to the petitioner and he submitted his objection against the same. The General Manager (West Bengal region) being the Disciplinary Authority considered the case of the petitioner and afforded him an opportunity of personal hearing on two occasions. The Disciplinary Authority held that the petitioner was guilty of the charges framed against him for misappropriation of a colossal amount of Rs. 81,40,332/- (rupees eighty one lac forty thousand three hundred and thirty two) only in connivance with the other depot officials. The disciplinary authority held that the petitioner acted in a manner unbecoming of an official of FCI and hence not be retained in service.

The disciplinary authority exercised the power conferred under Regulation 56 of FCI (Staff) Regulations, 1971 (as amended) and imposed penalty of dismissal from service with immediate effect. The period of suspension of the petitioner from 28th October, 2002 to 25th November, 2003 and from 9th January, 2008 till the date of receipt of the order of penalty was directed to be treated as dies non.

Being aggrieved by the order of the disciplinary authority the petitioner preferred a statutory appeal on 6th January, 2010 which was considered by the Appellate Authority and rejected by an order dated 22nd March, 2011.

The Appellate Authority held that in the larger public interest, persons who are involved in act of misconduct and commission of irregularities resulting in huge loss to the Corporation must be appropriately punished. Where the appellant acts in a fiduciary capacity, highest degree of integrity and trustworthiness is a must and unexceptionable. The act of the appellant was either dishonest or was grossly negligent, and he was not fit to be retained in the service of FCI, which resulted in huge financial losses.

The FCI also lodged a complaint against the petitioner before the Superintendent of Police and the Central Bureau of Investigation. Pursuant to the complaint lodged, a criminal proceeding was initiated against the petitioner, under the Indian Penal Code and the Prevention of Corruption Act, 1988. A trial was held before the Special Judge wherein the same set of documents and almost the same witnesses were relied upon. The learned Court by a judgment dated 31st March, 2014 found the petitioner innocent and acquitted him from all charges.

The petitioner submits that the Articles of charge framed against the petitioner are absolutely false, frivolous, bogus, after though and do not have any legs to stand upon. The petitioner contends that the inquiry officer proceeded with the inquiry in the absence of vital witness and accordingly the report filed by the inquiry officer is vitiated by perversity. Under such circumstances the maximum punishment of dismissal from service could not have been imposed upon the petitioner.

It has been further argued that as the petitioner had been acquitted from the criminal proceedings which were initiated on the self-same charges as the disciplinary proceedings accordingly the order passed in the disciplinary proceedings is liable to be set aside and quashed. The penalty imposed upon the petitioner is liable to be annulled and/or cancelled by the Hon'ble Court.

The petitioner relied upon the following judgments in support of his case.

(1) UP State Transport Corporation & Ors. vs. Mahesh Kumar Mishra & Ors.: AIR 2000 SC 1151 paragraphs 8 and 9 on the proposition that the High Court can interfere with the quantum of punishment imposed upon a delinquent employee in a disciplinary proceeding if the penalty shocks the conscience of the Court.

(2) Bhagat Ram vs. State of Himachal Pradesh & Ors.: AIR 1983 SC 454 paragraphs 10, 15 and 16 wherein the Court held that in a petition under Article 226 the High Court does not function as a Court of Appeal over the findings of the disciplinary authority. But where the finding is utterly perverse the Court can always interfere with the same. The penalty imposed must be commensurate with the gravity of the misconduct and should not be disproportionate as the same would be violative of Article 14 of the Constitution.

(3) State of Madhya Pradesh vs. Chintaman Sadashiva Waishampayan (CB) : AIR 1961 SC 1623 paragraphs 9 and 10 wherein the Court held that the departmental enquiries should observe the rules of natural justice and if they are fairly and properly conducted the decisions reached by the enquiry officers on merits are not open to challenge on the ground that the procedure followed was not exactly in accordance with what is observed in the Court of Law. Natural justice require that a party should be afforded the opportunity of adducing all relevant evidence on which he relies, evidence of the opponent should be taken in his presence and he should be given an opportunity of cross-examining the witnesses and no material should be relied on against him without giving him an opportunity to explain them.

(4) High Court of Judicature at Bombay vs. Sashikant s. Patil & Anr. : AIR 2000 SC 22 paragraphs 16, 19 and 21 wherein a three Judge Bench of the Supreme Court held that the departmental authority is the sole judge of the facts, if the enquiry has been properly conducted. The Court observed that it is settled law that if there is some legal evidence on which the findings can be based, then adequacy or even reliability of that evidence is not a matter for canvassing before the High Court in a writ petition filed under Article 226 of the Constitution.

The petitioner submits that the Appellate Authority is not sure as to whether the petitioner was dishonest or negligent. He submits that in the absence of a specific finding that the petitioner was either dishonest or negligent the imposition of punishment of dismissal is bad in law and liable to be set aside.

(5) State of Madhya Pradesh & Ors. vs. S. Sree Rama Rao : AIR 1963 SC 1723 paragraph 7 wherein the Court held that the High Court under Article 226 of the Constitution of India does not act as a Court of Appeal over the decision of the authority holding departmental enquiry against the public servant. It is not the function of the High Court under Article 226 to review and arrive at an independent finding on evidence. The adequacy or reliability of evidence is not a matter which can be permitted to be canvassed before the High Court in a writ proceeding under Article 226 of the Constitution.

The petitioner prays for setting aside the entire disciplinary proceeding culminating in the order of penalty and to release his salaries and other consequential benefits.

The respondents have denied the allegations made by the petitioner. The respondents submit that the writ petition is liable to be dismissed on the ground of not availing the alternative remedy of review that was available to the petitioner under Rule 74 of the FCI (Staff) Regulations, 1971. It has been submitted that the petitioner was responsible for the huge shortage of stocks. Surprise inspection was conducted in the hired godowns and the food supply depot of which the petitioner was in charge. The petitioner failed to explain the shortages. All the eight charges levelled against the petitioner stood proved. The petitioner himself made a confessional statement acknowledging the shortages. The petitioner also gave an undertaking that he will reimburse the amount of loss caused to the Corporation by way of instalments.

The disciplinary proceeding was conducted strictly following the Rules and Regulations and upon observance of the principles of natural justice. The petitioner was given ample opportunity to disprove the allegations levelled against him. The petitioner was given opportunity to file his statement of defence. He was also given a chance to reply to the report filed by the inquiry officer. The petitioner was given opportunity to cross-examine the witnesses. Personal hearing was given to the petitioner twice prior to passing the final order by the Disciplinary Authority.

The appeal that was filed by the petitioner was also duly considered by the Appellate Authority. On dismissal of the appeal the petitioner was intimated about the provision for preferring the review application. Instead of availing the remedy of preferring review the petitioner has filed the instant writ application. There was no procedural impropriety and judicial review is not called for in the instant case. There is no averment in the petition that the punishment imposed was illegal or disproportionate.

The respondents rely upon the following judgments in support of their case.

(1) Chairman-cum-Managing Director, Coal India Ltd. & Anr. Vs. Mukul Kumar Chowdhury & Ors.: (2009) 15 SCC 1620 paragraphs 13 and 14 wherein the Court held that it is not open to the High Court to examine the findings recorded by the enquiry officer as a court of appeal and reach at its own conclusion. The power of judicial review is not directed against the decision, but is confined to the decision making process.

As in the instant case the delinquent has admitted his charges by making a confessional statement accordingly there is no scope to differ with the conclusions arrived at by the disciplinary authority. In the absence of any procedural irregularity or illegality in conduct of the disciplinary inquiry no interference is called for under Article 226 of the Constitution of India.

(2) Central Manager (Operations) State Bank of India & Anr. Vs. R. Periyasamy: (2015) 3 SCC 101 paragraphs 8-10 wherein the Court held that the Court will not interfere with the findings of fact recorded in departmental enquiries except where such findings are on common evidence or where they are clearly perverse. The Court will interfere with the findings in disciplinary matters if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous conditions. The question of adequacy of evidence could not have been gone into to conclude that the evidence was insufficient to hold the respondent guilty.

(3) Chairman and Managing Director, V. S. P. & Ors. vs. Goparaju Sri Prabhakara Hari Babu : (2008)5 SCC 569 paragraphs 21 and 22 wherein the Court held that once it is found that all the procedural requirements have been complied with, the Court would ordinarily not interfere with the quantum of punishment imposed. If the decision of the employer is found to be within the legal parameters, the jurisdiction would ordinarily not be invoked when the misconduct stood proved. The High Court under Article 226 cannot, on the basis of sympathy or sentiment overturn a legal order.

(4) Alauddin Mir vs. Union of India & Ors.: 2019(1) CLJ (Cal) 403 paragraphs 13, 16 and 17 wherein the Court reiterated the settled principle of law regarding the limited scope of judicial review by the High Court under Article 226 and the consistent view of the Court that judicial review is not an appeal in disguise.

The respondents pray for dismissal of the writ petition.

I have heard the submissions made on behalf of both the parties.

From the documents annexed to the writ petition it is abundantly clear that there has not been any lapse on the part of the Disciplinary Authority in conducting the disciplinary proceedings. Several opportunities were given to the petitioner to defend himself. The petitioner has not contended that opportunity of hearing was not granted to him. The petitioner himself admitted his guilt in his confessional statement. The Court has tried, in vain, to find out a single averment in the entire petition where the petitioner denied his confessional statement.

As per the provision of Section 58 of The Evidence Act things admitted need not be proved. The respondent authority could have rested the case on the basis of the confessional statement made by the petitioner. Instead of doing so, the authority thought it prudent to conduct a regular disciplinary proceeding. The petitioner participated in the said proceeding. The Disciplinary Authority after considering the statement of the petitioner and the report of the inquiry officer passed the order of penalty that has been impugned in the instant writ petition.

The petitioner harps upon the issue that as the petitioner has been acquitted in the criminal proceeding after trial, the order passed in the disciplinary proceeding is liable to be set aside and the petitioner be reinstated in service. The petitioner has annexed a copy of the judgment dated 31st March 2014 delivered by the Ld. Spl. Judge, (P.C.Act) South Sikkim, at Namchi in the supplementary affidavit, affirmed by him on 25th March 2019. Upon perusal of the said judgment it appears that the documents relied upon by the parties in the departmental proceeding and the criminal trial were not the same. The Ld. Court below took into consideration one hundred fifty five documents to arrive at the conclusion that the accused i.e. the petitioner herein was innocent but, the confessional statement made by the petitioner was surprisingly not placed before the Ld. Court by either of the parties.

The law in this regard has more or less been settled by the Hon'ble Supreme Court in a catena of decisions. The law as it stands today is, that acquittal in a criminal proceeding will not ipso facto be a ground for quashing/setting aside the order passed in a departmental proceeding, even when both the proceedings proceeded on the self-same facts. The standard of proof required to prove a criminal charge compared to a departmental proceeding is absolutely different. The strict standard of proof in accordance with the Evidence Act stands excluded in a departmental proceeding where the case rests upon preponderance of probabilities.

In the instant case, the sheet anchor of the employer was the confessional statement made by the petitioner at the time of surprise inspection. The petitioner never denied or retracted from the said statement. The said statement was never placed before the criminal Court. A factual difference in the two proceedings, no matter how minor the same may be, will make a sea of difference in the conclusions arrived at by the decision making authority. In the case at hand, the deciding factor and the most vital piece of evidence are the confessional statement and the undertaking given by the petitioner to make good the loss suffered by the FCI. Armed with the said two documents and the depositions made by the witnesses the department came to the conclusion to impose penalty upon the petitioner. It is beyond the scope of the writ court to sit in appeal over the said finding of facts.

There does not appear to be any latches on the part of the respondents in conducting the disciplinary proceeding. There is hardly any occasion to interfere in the decision making process.

The judgments referred to by the parties as mentioned hereinabove consistently held that in the absence of any procedural irregularity or illegality interference under Article 226 is not warranted. The scope of judicial review is extremely limited. In the facts and circumstances of the instant case the quantum of punishment imposed upon the petitioner does not appear to be disproportionate qua the charges levelled against him.

The plea of availability of alternative remedy as taken by the respondents may not stand in the way of entertaining the writ petition and disposing of the same on merits in view of the fact that the writ petition was filed in the year 2011 and the same remained pending for disposal in this Court for a considerable period of time. Relegating the petitioner, a senior citizen, to avail the remedy before the alternative forum, after lapse of eight years will be extremely harsh upon him. In view of the above, this Court rejects the contention of the respondents to relegate the matter to the reviewing authority at such a belated stage.

The Appellate Authority while passing its order recorded that in larger public interest persons who are involved in acts of misconduct and commission of irregularities resulting in huge loss to the Corporation must be properly punished. This Court is also of the opinion that persons acting in fiduciary capacity and entrusted with responsible duties ought to possess the highest degree of integrity otherwise the very basis to entrust them with such duties will be frustrated. The institution cannot function properly in the hands of corrupt and dishonest persons, who will not think twice to adopt and indulge in unfair practice, for their personal gains. They are a burden to the institution and to the society at large. The institution can flourish only if such dishonest persons are properly identified and exemplary punishment imposed upon them.

There is no justification to show sympathy in favour of a delinquent employee in a case where the disciplinary authority has proceeded in accordance with law, and by following the principles of natural justice.

I find no reason to interfere with the disciplinary proceeding and the reasoned order passed therein by the Disciplinary Authority and affirmed by the Appellate Authority. The writ petition fails and is accordingly dismissed.

W.P. No. 882 of 2011 is dismissed.

Urgent certified photocopy of this judgment, if applied for, be supplied to the parties on compliance of usual legal formalities.