Tapan Kumar Dutt, J.@mdashHeard the learned advocates for the respective parties.
2. The facts of the case, very briefly, are as follows:-
At the time when the writ petitioner/appellant was working as Assistant Grade II (Depot) under the respondents-authorities, a charge-sheet dated 18th April 1999 was issued against the appellant and such charge-sheet contained charges of mis-appropriation of stocks by the appellant in connivance with other staff for pecuniary gains, failure to discharge duties honestly and faithfully contravening certain regulations of the F.C.I. (Staff) Regulations 1971 (as amended) on the part of the appellant and the appellant''s failure to maintain proper depot records.
For a better appreciation of the said charges, the same are quoted
below: -
"Article of Charge Framed Against Md.islamuddin Khan, Ag.II (Depot) ARDC, Khagrabari, Coochbehar Under District Manager, FCL, Coochbehar. Now Posted Under Dist. Manager (PD), FCI.
Article No. I
Md. Islamuddin Khan, Asstt. Gr.II (Depot), while functioning (as AG.II (Depot), ARDC, Khagrabari, under District Manager, FCI, Coochbehar from 22.11.97 to 09.10.98, committed gross misconduct and irregularities. During the Annual Physical verification of stocks of Rice, Wheat & Sugar on 31.3.98 at ARDC, Khagrabari glaring discrepancies and huge shortage of foodgrains and sugar were detected by the Regional P. V. Team. The discrepancies detected during the Annual Physical verification is detailed below: -
1. Rice 2,929 short (bags)
2. Sugar (Levy) 201 b/s. short stack 1B/13
3. Wheat (Ind) 1391 b/s. found excess
There are reasons to believe that Md. Islamuddin Khan, AG.II(D), had misappropriated the stocks found short in connivance with other staff for his pecuniary gain while the wheat stock found excess was kept unaccounted with the intention to misappropriate the same at an opportune moment.
Md. Islamuddin Khan, had thus contravened Regulations, 31(a), (b), 32 of the FCI(Staff) Regulations, 1971 (as amended) and rendered himself liable for Disciplinary proceedings.
Article No. II
During the 100% physical verification of stocks at ARDC Khagrabari, Coochbehar as on 30,.9.98 by a Special PV Team from Regional Office huge shortage of stocks were detected as detailed below: -
1. Wheat (Ind) 1,863 b/s = Qtl. 1,706,62
2. Sugar (Levy) 216 = Qtl. 246,08.000
3. Rice Common Bld. 469 b/s = Qtl. 485,31,000
The stock is non-existent.
4. Rice Common BId. (Pkts) 180 b/s. = Qtl. 95,79,590
5. Rice Common Raw- Bags Nil = Qtl. 88,51,000
6. Rice Grade ''A'' URS 1120 b/s. = Qtl. 1002,70,000
The Stock is non-existent 100% short.
7. Rice Fine Raw -334 b/s. = Qtl. 289,84,000
8. Rice Grade ''A'' URS -Qtl. 37.48.000
Md. Islamuddin Khan, AG.II(D), had in connivance with the staff posted at ARDC, Khagrabari misappropriated the stocks for his pecuniary gain at the cost of FCI. Thus Md. Islamuddin Khan, failed to discharge his duties honestly and faithfully contravening Regulations, 31(a), (b), & 32, 32A(4), (5), (3) of the FCI (Staff) Regulations, 1971 (as amended) and rendered himself liable for disciplinary proceedings.
Article No. III
Md. Islamuddin Khan, AG.II(D) did not ensure maintenance of depot records though he was aware that the depot books of account were, not maintained from 1.4.1997 and the PV was conducted on the basis of the stack registers brought up by the squad deputed from storage Branch of Regional Office. The depot records were made uptodate during Aug. ''98 by a team from Regional Office after 17 months as the depot could not even make a single entry in the relevant books of account. Md. Khan, AG.II(D), instead of promoting the interest of the Corporation, had acted in a manner prejudicial to the interest of the Corporation.
By the acts as aforesaid Md. Khan, AG.II(D), had failed to maintain absolute integrity and devotion to duty in contravention of Regulations 31(a), (b), (c), 32, 32A(4), (5), (30) and thus rendered himself liable for disciplinary proceedings."
5. It was alleged by the respondent authorities that the appellant was responsible for huge shortage of stocks and the appellant failed to maintain absolute integrity and devotion to duty and had rendered himself liable for disciplinary proceedings. Thus the disciplinary proceeding was brought against the appellant and it further appears that the allegation made by the respondents against the appellant in the charge-sheet was in respect of the period of the appellant''s posting at Khagrabari, Coochbehar under the District Manager, FCI, Coochbehar, from 22.11.1997 to 09.10.1998. The Enquiry Officer, who was appointed to hold an enquiry, submitted his report. The Enquiry Officer took into consideration the evidences on record and came to the finding that it has been established that the appellant was guilty of utter negligence to his duty and indifferent attitude while performing at the depot concerned and that the huge shortages detected in the depot were result of misdeeds which were carried on for years even prior to the period when the appellant was posted at the said depot. The Enquiry Officer came to the finding that the wrongful activities in the depot concerned continued during the period when the appellant was posted at the said depot. The Enquiry Officer, however, held that he cannot hold the appellant fully responsible for both charges of misappropriation of stocks to the nature of more than Rs. 38,00,000/- as the appellant had joined in the depot when some losses were already existing but the appellant''s involvement in the misappropriation, which took place when he was posted in the depot, cannot be ruled out but the extent of involvement in terms of money value in the overall estimated loss is indeterminable and therefore the appellant was partially guilty of the charge Nos. 1 and 2. With regard to charge No. 3 the Enquiry Officer came to the following finding :-
"Article of Charge No. III
The instances of flagrant violation of system and procedures with regard to maintenance of records, allowing books of accounts remaining un-written and in arrears for months after months was a lapse and dereliction of duties individually and collectively as far as the CO is concerned for the period he was posted in the depot. I, therefore, hold him responsible for pendency of accounts relating to the period he was posted at ARDC, Khagrabari."
6. The disciplinary authority served a copy of the enquiry report upon the appellant giving the appellant an opportunity to make a representation and/or submissions in respect of the findings of the Enquiry Officer. The appellant submitted his representation, and the disciplinary authority, after taking into consideration the materials on record, agreed with the findings of the Enquiry Officer and passed an order that a penalty of reduction of pay to the minimum of the time scale should be imposed on the appellant for a period of five years with a further direction that he will not be entitled to earn any increment during the period the reduction shall be in force and on expiry of such period the reduction will have the effect of postponing the future increment of pay. (Page-19 of the Paper Book). It appears that an appeal was filed by the appellant against the final order of the disciplinary authority but the said appeal was dismissed. Challenging such order of dismissal passed by the appellate authority the writ petition was filed being W.P. No.1433 of 2001 by the appellant.
7. The writ petition came up for hearing and an Hon''ble single Judge of this Court by order dated 18th October, 2001 was pleased to allow the said writ petition to the extent indicated therein. In this regard the following relevant part of the order under challenge in this appeal is quoted below:-
"With regard to quantum of penalty as imposed is reduction of pay to the minimum of the time scale for a period of five years. The order was passed on November 30, 2001. Therefore, it appears that the disciplinary authority overlooked the aforesaid date of superannuation of the Petitioner while imposing the said penalty spreading over a period of five years with a further direction stopping increment during the said period of five years when admittedly the Petitioner was not having a service period of five years left in his credit. Therefore, the impugned order of disciplinary authority only to the extent of quantum of punishment appears to be on non-application of mind. The penalty imposed by the impugned order is therefore set aside and the respondents may pass final order reducing the period, as observed hereinabove within a period of three weeks from today. The writ petition is allowed to the aforesaid extent.
8. It appears from a reading of the order challenged in this appeal that the Learned counsel for the appellant/writ petitioner contended before the Hon''ble single Judge that the charge-sheet is bad as it depicted a closed and prejudged mind and the findings of the Enquiry Officer are perverse. Further, it was the case of the writ petitioner that the final order of penalty passed by the disciplinary authority was on the basis of a conclusion which was different from that of the Enquiry Officer and yet the disciplinary authority neither indicated the reasons for such difference nor granted an opportunity to the writ petitioner to make a representation with regard to such reasons and the appellate order was also challenged on the ground of insufficient findings.
9. The Hon''ble single Judge found that on reading the entire charge-sheet it appeared that the substance of imputation of misconduct was set out in the articles of charge and that the authority concerned proposed to hold an enquiry and the writ petitioner was granted opportunity to make representation and also hearing in person. The Hon''ble Judge found that an enquiry was held and the matter was considered on the materials found during hearing and there was no reason to hold that the charge-sheet depicted a closed mind of the authority concerned. The Hon''ble Judge found that the Enquiry Officer considered the evidence and came to a finding on that basis that the charges against the writ petitioner have been partially proved though extent of involvement of the writ petitioner in terms of money value in the overall estimated loss was found to be indeterminable but the involvement of the writ petitioner in the misappropriation has been found. The Hon''ble single Judge found that this is not a case where it can be said that the findings were arrived at by the Enquiry Officer without any evidence on record. The Hon''ble single Judge was of the opinion, quite rightly, that the Enquiry Officer came to his findings on assessment of evidence and such evidence cannot be re-assessed by the writ Court for the purpose of reaching an independent conclusion. The Hon''ble single Judge also, quite rightly, found that the disciplinary authority agreed with the findings of the Enquiry Officer and thereafter passed the order of punishment. The Hon''ble single Judge further found, quite rightly, that in such case of agreement by the disciplinary authority with the findings of the Enquiry Officer, when the writ petitioner was granted opportunity to make a representation on the findings of the Enquiry Officer there was compliance of the requirement of the law as it stands.
10. It further appears on perusal of the order challenged in the instant appeal that the Hon''ble single Judge took into consideration the fact that the writ petitioner was due to retire on 30.11.2001 and thus came to the conclusion that the disciplinary authority overlooked such date of superannuation of the writ petitioner while imposing the penalty spreading over a period of five years with the further direction for stopping increment during the said period of five years when admittedly the writ petitioner was not having a service period of five years left to his credit and, therefore, the final order of the disciplinary authority only to the extent of quantum of punishment appears to be a result of non-application of mind. The Hon''ble single Judge was pleased to set aside the penalty imposed by the disciplinary authority and give liberty to the respondents-authorities to pass a final order reducing the period as observed by His Lordship in His Lordship''s said order within a stipulated period of time.
11. Comparing the submissions made by the learned counsel for the appellant before this Court and those made before the Hon''ble single Judge, as is reflected in the order under challenge in this appeal, it appears to us that the submissions were more or less similar. Before us, also, the Learned counsel for the appellant, by way of referring to certain copies of documents on record, tried to argue that the charge-sheet was a product of closed mind and the findings of the Enquiry Officer were perverse. In agreement with the Hon''ble single Judge, we are also of the view that it will not be proper for us to re-assess the evidences on record. We are convinced that the present case is not a case where it can be said that the findings were arrived at by the Enquiry Officer without any evidence on record. Even if, on appraisal of the evidence on record, we feel inclined to come to a different view from that of the Enquiry Officer and/or the disciplinary authority, we cannot possibly do so. The proceedings before the disciplinary authority and the manner in which such proceedings took placed the conclusion arrived at by the disciplinary authority cannot be said to be one which can possibly shock the judicial concience of the Court. The Learned counsel for the appellant laid emphasis on the finding of the Enquiry Officer where he held that the huge shortages detected in the depot are the culmination of misdeeds and rampant activities which were going on in the depot for years even prior to the period when the charged officer was posted in the depot i.e. ARDC, Khagrabari. The other finding on which emphasis was given by the said learned counsel was the finding where the Enquiry Officer held that the appellant cannot be held to be fully responsible for both the charges of misappropriation of stocks to the tune of more than Rs.38,00,000/- as he joined the depot when some losses were already existing. The said Learned counsel submitted that the said findings would show that there were misdeeds or misappropriations even before the appellant had joined the said depot, that is, ARDC, Khagrabari and thus the appellant cannot be held to be responsible for such misappropriation. The said learned counsel submitted that the aforesaid finding of the Enquiry Officer will indicate that the Enquiry Officer did not find the appellant guilty of Charges I and II. In our view, such submission of the said Learned counsel for the appellants is without any force and such submission is not acceptable to this Court. By making the above finding the Enquiry Officer had clearly meant that the appellant may not be fully responsible for the entire misappropriation of stocks to the tune of Rs.38,00,000 and odd but the appellant had a role to play in some part of the entire misappropriation. The aforesaid findings of the Enquiry Officer clearly indicate that even during the tenure of the appellant misappropriations were there and also even before the tenure of the appellant misappropriation had been there.
12. The Learned counsel for the appellant submitted that the Hon''ble single Judge was not correct in holding that the writ Court should not reassess the evidence and the power of judicial review by the Court is wide enough to include such reassessment of evidence, if necessary, and to find out if the finding of the Enquiry Officer can at all be substantiated. The said Learned counsel submitted that the instant case is one where this Court should make a re-appraisal of the evidence on record and come to its own finding with regard to the alleged guilt of the appellant.
13. The said Learned counsel cited a decision reported at 2001(3) E.S.C. (All.) 1325 (Brijesh Kumar v. Collector /District Magistrate, Mainpuri and others). It cannot be appreciated as to how the said reported case can be of any assistance to the appellant since the facts and circumstances of the said reported case were quite different. In the said reported case the petitioner was aggrieved against an order whereby his services were terminated. It appears from reading paragraph 3 of the said reports that in the said reported case the subject matter for consideration was the order of termination of services of the petitioner on the ground of not achieving the target for collection. The Hon''ble Court held in the said reports that mere non-achieving of target for collection bereft of other relevant facts, cannot be the criterion for achieving efficiency.
14. The said learned counsel referred to another decision reported at
15. The Learned counsel for the appellant relied upon a decision reported at 2000(8) S.L.R. 769 (Kumaon Mandal Vikas Nigam Ltd. v. Girija Shankar Pant) and referred to paragraph 17 of the said reports. In paragraph 17 of the said reports the Hon''ble Supreme Court was pleased to observe that the availability of judicial review even in the case of departmental proceeding cannot be doubted and that judicial review of administrative action is feasible and has its application to its fullest extent in the departmental proceeding where it is found that the recorded findings are based on no evidence or the findings are totally perverse or legally untenable. The Hon''ble Supreme Court was further pleased to observe that the "adequacy or inadequacy of evidence is not permitted but in the event of there being a finding which otherwise shocks the judicial conscience of the Court, it is a wellneigh impossibility to decry availability of judicial review at the instance of an affected person".
16. There cannot be any dispute with regard to the aforesaid observations of the Hon''ble Supreme Court as contained in the said reports but the point is that in the facts and circumstances of the instant case it cannot be said that findings of the enquiring officer are based on no evidence or that such findings are in any way perverse or legally untenable. This being the factual position in the present case, this Court is of the view that judicial review should not be exercised in the present case by way of reassessing the evidence on record. There cannot be any dispute that judicial review even in case of departmental proceeding is available but what is required to be done in a given case will depend on the facts and circumstances of such case. It further appears that pursuant to the order under challenge in this appeal, the respondent-authorities have passed an appropriate order dated 30.10.2001 taking into consideration the date of superannuation of the appellant and its effect on the order of punishment.
In view of the discussions made above we do not find any merit in the instant appeal which is accordingly dismissed. There shall, however, be no order as to costs.
Urgent Xerox certified copy of this order, if applied for, shall be given to the learned Advocates for the respective parties, on compliance of usual formalities.
