CIVIL WRIT JURISDICTION CASE No.2284 OF 1997 (In the matter of an application under Article 226 of the Constitution of India.) DEVENDRA MISHRA, SON OF LATE SHOBHA KANT MISHRA, RESIDENT OF VILLAGE AND P.O.- SHIVRAM, P.S.- BAHERA, DISTRICT- DARBHANGA :---------------PETITIONER. Versus 1. THE BIHAR STATE SUGAR CORPORATION LIMITED THROUGH ITS MANAGING DIRECTOR, RAM TAHAL BHAWAN, PUNAICHAK, PATNA. 2. THE MANAGING DIRECTOR, BIHAR STATE SUGAR CORPORATION LIMITED, RAM TAHAL BHAWAN, PUNAICHAK, PATNA. 3. SHIVDEEP NARAIN RAI, THE ENQUIRY OFFICER-CUM-THE ADDITIONAL SECRETARY, CANE DEPARTMENT OF STATE GOVT., BIHAR AT PATNA. 4. THE CANE COMMISSIONER, GOVT. OF BIHAR, PATNA. 5. THE STASTE OF BIHAR :---------------------RESPONDENTS. ----------- For The Petitioner :M/S PREM KUMAR JHA & RAJESH KUMAR JHA, ADVOCATES. For the Corporation : MRS. SUJATA MUKHERJEE. ================= P R E S E N T THE HON'BLE MR. JUSTICE V.N. SINHA V.N.Sinha,J. Petitioner at the relevant time served as Chief Engineer in the Motipur Sugar Factory of the Bihar State Sugar Corporation Limited (hereinafter referred to as the “Corporation”). He is aggrieved by the order bearing Memo No.3926 dated 27.08.1997, Annexure-13 passed by the Managing Director of the Corporation, whereunder petitioner has been dismissed from the 2 service of the Corporation in the light of the resolution of the Board of Directors made in consideration of the Enquiry Report submitted pursuant to charge-sheet dated 26.09.1994, Annexure-2. Perusal of the charge- sheet dated 26.09.1994, Annexure-2 would indicate that the following eight charges were framed against the petitioner: (i). With reference to the closure hours of the Sugar Factory during the two crushing seasons i.e. 1986-87 and 1987-88 it is alleged that during the crushing season 1987-88 the closure hours of the Sugar Factory increased on account of mechanical fault, no cane supply, process closure and closure on account of other reasons. (ii). With reference to the figures of the years 1984-85, 1986-87 and 1987-88 it is alleged that there has been comparative increase in loss of sugar through Bagas which petitioner failed to contain. (iii)(a). The cost of sugar production was comparatively higher in the year 1987-88 on account of excess labour payment causing loss to the factory. (iii)(b). Petitioner co-operated with the General Manager of the Sugar Factory during the crushing season 1987-88 while the General Manager misused his authority and made excess payment of overtime 3 allowance. (iii)(c). During the crushing season 1987-88 there has been comparative increase in cash loss on account of excess labour payment for which petitioner being the Chief Engineer was mainly responsible. (iv). During the crushing season 1987-88 petitioner is also alleged to be responsible for causing excess expenditure in store and repair causing increase in cash loss. (v). During crushing season 1987-88 petitioner is also alleged to have made comparatively higher expenditure on repair and maintenance increasing the cost of sugar production. (vi). During the crushing year 1987-88 petitioner is also alleged to have made increased expenditure on energy/fuel cost by Rs. 0.67 paise per quintal. (vii). During the crushing season 1987-88 the closure hours of Motipur Unit comparatively increased due to supply of inferior quality of valves by M/s Supreme Sales Corporation and M/s Rawex Corporation causing huge loss to the factory. (viii). During the crushing season 1987-88 petitioner and the General Manager of the factory in conspiracy with each other defalcated huge amount by 4 awarding the following contracts : (a). Rs. 25,600/- was spent in repair of the yard without prior permission of the headquarter. (b). Rs. 30,000/- was spent in repair of juice heater header without prior permission of the headquarter. (c). Rs. 40,000/- was spent on the construction of tank without prior permission of the headquarter. (d). Petitioner is alleged to have spent Rs. 45,000/- in the repair of Molasses Tank but it is not known whether the tank was ever repaired. 2. In response to the aforesaid charge-sheet petitioner filed his written reply dated 12.11.1994, Annexure-3 on the basis of his memory (recollection) reserving his right to file further reply after the records of the crushing season 1987-88 is made available to him by the authorities of Motipur Sugar Factory. Having perused the records of the crushing season 1987-88 of the Motipur Sugar Factory petitioner filed his supplementary reply dated 18.04.1995, Annexure-4. 3. Perusal of the two reply dated 12.11.1994 and 18.4.1995, Annexures- 3 and 4 indicate that petitioner refuted all the eight charges. In connection with Charge No. (i) petitioner stated that during the crushing season 1987-88 the closure hours of the 5 Motipur Sugar Factory on account of mechanical and other fault was reduced to 8.65 per cent from that of 8.69 per cent in the year 1986-87 and submitted that the charge levelled against him is factually incorrect. As regards charge no. (ii). that during the crushing season 1987-88 there was comparative increase in loss of sugar in Bagas petitioner submitted that such loss was on account of breakdown in the factory, non-availability of spare roller in the factory godown which led to increase in the working days of the factory up to 4th April, 1988 even beyond 8th March, 1987 the closure date for the year 1987-88 during which stale cane was supplied causing loss in recovery of sugar for which petitioner being the Chief Engineer cannot be held responsible. As regards charge no. (iii)(a) petitioner submitted that the increase in the labour cost for the year 1987-88 was on account of increase in the rate of Dearness Allowance as also on account of employees having been made permanent for which petitioner being the Chief Engineer cannot be held responsible. As regards charge no. (iii)(b) that there has been increase in the overtime allowance for the year 1987-88 petitioner submitted with reference to the figures of the previous year as also of the succeeding 6 year that there has been consistent increase in payment of the overtime allowance and he cannot be said to have cooperated with the General Manager in making payment of overtime allowance beyond his authority. As regards charge no. (iii)(c) that there has been comparative increase in the cash loss in the year1987- 88 on account of excess labour payment petitioner submitted that there has been increase in the labour force engaged in the different departments of the Sugar Factory other than the factory over which he had hardly any control and he cannot be held responsible for such increase in the labour force and payment made to them. As regards charge no. (iv) that there has been increase in the store and repairing cost for the year 1987-88 petitioner submitted with reference to the figures of the previous year and the year under scrutiny that there has been decrease in the stores and repairing cost/expenditure and the charge appears to be misconceived. As regards charge no. (v) that the sugar production cost for the year 1987-88 increased due to excess expenditure in repair and maintenance petitioner submitted that the increase in the production cost of sugar was on account of low recovery and delayed closure of the sugar factory. 7 As regards charge no. (vi) that during the crushing season 1987-88 the energy/fuel charge increased by 0.67 paise per quintal, petitioner submitted that on account of increase in the price of the fuel, energy/fuel charge increased by 0.67 paise per quintal over which petitioner had hardly any control. As regards charge no. (vii) that on account of supply of inferior quality of valves the closure hours in the factory during the crushing season 1987-88 increased petitioner submitted that he cannot be held responsible for supply of inferior quality of valves as he joined the factory on 3rd September, 1987 prior thereto orders for supply of rubber valves had already been placed for which he cannot be held responsible. As regards charge no. (viii) that various civil and other works were undertaken prior to the crushing season 1987-88 on contract basis petitioner submitted that such contracts were awarded in the light of the permission granted by the headquarter under Letter No. 2775 dated 07.05.1987 before he joined the factory on 3rd September, 1987, as such, he cannot be held responsible for awarding of those contracts. 4. The Enquiry Officer having considered the reply dated 12.11.1994, Annexure-3 submitted report dated 17.11.1995, Annexure-6 perusal whereof 8 indicates that petitioner was not held guilty of charge no. (i) that there has been increase in the closure hours of the factory during the crushing season 1987-88 and such finding was recorded with reference to the figures of the years 1986-87 and 1987-88 in which the closure hours of the factory was 8.69 per cent and 8.65 per cent respectively. As regards charge no. (ii) the Enquiry Officer without considering the defence of the petitioner recorded finding that charge no. (ii) stands proved. As regards charge no. (iii)(a) also the Enquiry Officer recorded finding that the production cost of sugar has increased but while recording such finding he did not consider the defence of the petitioner that such increase was on account of various factors over which petitioner hardly had any control. As regards charge no. (iii)(b) and (c) the Enquiry Officer without considering the written defence of the petitioner recorded the finding that the said charge may be accepted as proved against the petitioner. As regards charge no. (iv) the Enquiry Officer without considering the written defence of the petitioner held that petitioner is solely responsible for cash loss on account of increase in the expenditure of store and repairs. As regards charge no. (v) the Enquiry Officer held that the said charge is partially proved 9 against the petitioner as there has been increase in the closure hours of the factory on account of mechanical fault. As regards charge no. (vi) the Enquiry Officer without considering the written defence of the petitioner held him partially guilty of the said charge further holding that there has been increase in the consumption of fuel which has further led to increase in the expenditure over the fuel and petitioner may have contributed towards irregular purchase of the fuel. As regards charge no. (vii) the Enquiry Officer held the petitioner guilty for supply of inferior quality of the valves and further observed that when the valves became defective he did not even submit report to the headquarter which indicate his connivance with the supplier. As regards charge no. (viii) the Enquiry Officer held that the charge stands proved against the petitioner as he did not submit reliable explanation refuting the charge. In the concluding paragraph of the report the Enquiry Officer candidly accepted the plea of the petitioner that on account of labour trouble, sabotage and the obsolete machines in the factory there was loss in sugar production and increase in the production cost of sugar in the factory. 5. Having considered the Enquiry Report the Board of Directors of the Corporation in its 81st meeting 10 resolved to dismiss the petitioner but prior thereto also agreed to grant him one more opportunity to show cause. In compliance of such resolution petitioner was served with second show-cause notice dated 18.2.1997, Annexure-5 enclosing copy of charge-sheet and the Enquiry Report asking the petitioner to submit his reply within ten days of the receipt of the notice as to why he be not dismissed from the service of the Corporation. Second show-cause reply of the petitioner was not received within the time granted under notice dated 18.2.1997 whereafter another notice dated 16.6.1997, Annexure-11 was issued asking the petitioner to submit his reply within one week, failing which decision shall be taken on the basis of materials available. Having received the notice dated 16.6.1997 petitioner informed the Managing Director under letter dated 24.6.1997, Annexure-12 that having received the earlier notice dated 18.2.1997 enclosing the charge-sheet and the Enquiry Report he filed the present writ case on 03.03.1997 questioning the findings recorded in the second show-cause notice and the Enquiry Report which was taken up for admission on 19.3.1997 when the counsel for the Corporation requested the High Court that the matter be taken up on 02.04.1997 to enable him to file counter affidavit so that the 11 application, if possible, can be disposed of on the adjourned date. In the light of the said order petitioner submitted under letter dated 24.06.1997, Annexure-12 that as the matter is sub judice in the High Court, further steps in the matter be taken only after disposal of the writ petition. 6. The Board of Directors of the Corporation considered the charge-sheet dated 26.09.1994, Annexure-2 and the Enquiry Report and resolved to dismiss the petitioner, whereafter the Managing Director passed order bearing Memo No. 3926 dated 27.08.1997, Annexure-13 dismissing the petitioner in the light of the resolution of the Board of Directors of the Corporation which was impugned by filing Amendment Petition bearing I.A.No. 5657 of 1997. The Amendment Petition (I.A.No. 5657 of 1997 was allowed under orders dated 27.10.1997 directing that amendment prayed for in the Interlocutory Application be incorporated and treated as part of the writ petition. 7. During the hearing of the writ petition counsel for the petitioner challenged the impugned dismissal order dated 27.08.1997, Annexure-13, second show-cause notice dated 18.2.1997, Annexure-5 and the Enquiry Report dated 17.11.1995, Annexure-6 on the ground that neither the Enquiry Officer nor the 12 Board of Directors of the Corporation considered the show-cause reply of the petitioner dated 18.4.1995, Annexure-4 before holding the petitioner guilty of the charges levelled in the charge-sheet dated 26.09.1994, Annexure-2 in which he had categorically stated that during the crushing year 1987-88 the comparative increase in the sugar loss, cost of sugar production was on account of increase in labour cost, over time payment, increase in expenditure of store and repairs, increase in the consumption of energy/fuel was on account of the breakdown of the factory and non- availability of spare roller in the godown which led to delay in replacement of the roller and supply of stale cane causing loss of recovery in sugar production. It was further submitted that on account of increase in the labour rates, Dearness Allowance and the workers becoming permanent during the crushing season 1987- 88 there was increase in the salary account of the workers and employees of the factory causing increase in the production cost over which petitioner had hardly any control. The authorities also did not consider the reply of the petitioner in regard to charge no. (iii)(b) and (c) with reference to the figures indicated in the show- cause reply dated 18.4.1995, Annexure-4. Similar is the submission with regard to other charges i.e. (iv) to (viii) 13 which does not appear to have been considered either in the Enquiry Report or in the second show-cause notice or dismissal order. 8. With reference to the defence raised by the petitioner in show-cause reply dated 18.4.1995, Annexure-4 it is submitted that the Enquiry Officer and the Board of Directors of the Corporation were required to have considered the same before recording the finding of guilt against the petitioner in the Enquiry Report, second show-cause notice and the punishment order but the same does not appear to have been considered and on this ground alone the Enquiry Report, second show-cause notice and the dismissal order are fit to be set aside. 9. It is further submitted on behalf of the petitioner that he was initially appointed as Assistant Engineer in the Sakri Sugar Works of Darbhanga Sugar Co. Ltd., Sakri, Darbhanga which was taken over by the State of Bihar in terms of the provisions of the Bihar Sugar Undertakings (Acquisition) Act, 1976. After take over of the Darbhanga Sugar Co. Ltd., Sakri by the State of Bihar the General Manager of the Corporation under Office Order No. 3 dated 08.10.1977 directed the petitioner, senior most Assistant Engineer to serve as Chief Engineer, Incharge of Sakri Unit until final 14 decision is taken about his status in the Corporation by the Chairman-cum-Managing Director of the Corporation. Under Office Order dated 14.12.1983 passed by the General Manager petitioner was directed to serve as Factory Manager until further orders. Under Office Order dated 19.06.1985 petitioner was transferred as Chief Engineer to the Goraul Sugar Factory of the Corporation wherefrom he was transferred under office order dated 31.08.1987 to Motipur Sugar Factory of the Corporation where he joined on 3rd September, 1987. Under orders dated 11.3.1988 petitioner was transferred to New Sawan Unit of the Corporation. With reference to the aforementioned transfer orders it is submitted that petitioner served the Motipur Sugar Factory for the period between 3rd September, 1987 till 11.3.1988 i.e. hardly for about six months and could not have been held responsible for the production loss and increase in the production cost of sugar produced during the crushing season 1987-88 which was unduly long as the crushing season came to close on 4th April, 1988 even after he was transferred from the factory under orders dated 11.3.1988. In this connection, it is further submitted that even prior to the take over of the Motipur Sugar Factory Limited, Motipur, Muzaffarpur 15 under the provisions of the Bihar Sugar Undertaking (Acquisition) Act, 1985 the Motipur Sugar Factory Limited was suffering loss as the erstwhile owners and occupier of the factory had not taken steps for modernization of the factory. Petitioner having joined the factory on 3rd September, 1987 could not have taken steps for modernization of the factory without there being a plan for such modernization formulated by the Corporation and as he was transferred out of the factory under orders dated 11.3.1988 even before closure of the crushing season for the year 1987-88 he had no opportunity to improve the quality of sugar production in the factory by reducing its cost. 10. Counsel for the Corporation has opposed the submission with reference to the averments made in the counter affidavit as also the findings recorded in the Enquiry Report, show-cause notice and the dismissal order. 11. Having heard counsel for the parties and perused the pleadings filed on their behalf including the charge-sheet dated 26.09.1994, Annexure-2, reply, further reply thereto dated 12.11.1994, 18.04.1995, Annexures- 3, 4, Enquiry Report dated 17.11.1995, Annexure-6, second show-cause notice dated 18.2.1997, Annexure-5 and the dismissal order dated 16 27.08.1997, Annexure-13, I am of the view that neither the Enquiry Officer nor the Board of Directors of the Corporation considered the contents of the reply, further reply of the petitioner dated 12.11.1994, 18.4.1995, Annexures 3, 4 submitted in response to the charge-sheet dated 26.09.1994, Annexure-2 in the manner in which it was required to have been considered and held the petitioner guilty of the charges levelled against him ignoring the findings of the Enquiry Officer recorded in the concluding paragraph of the report dated 17.11.1995, Annexure-6 that on account of labour trouble, sabotage and obsolete machines in the sugar factory there was increase in the production cost of sugar and loss in sugar production. While holding the petitioner guilty the authorities also overlooked the fact that Motipur Sugar Factory was incurring loss for the last several years and to safeguard the interest of the sugarcane growing farmers, labourers engaged in the factory as also for reorganizing, reconstructing the sugar factory so as to ensure its rationale, coordinated and scientific development to subserve the common good, the factory along with other loss incurring factories was taken over under the Bihar Sugar Undertakings (Acquisition) Act, 1985. The authorities while holding the petitioner guilty further ignored the 17 fact that he joined the Motipur Sugar Factory as Chief Engineer on 3rd September, 1987 and could not have taken steps for modernization of the factory without there being a plan for such modernization formulated by the Corporation so as to reduce the cash loss and increase the sugar production in the factory. While holding the petitioner guilty the authorities have further not taken into account the fact that during the crushing season 1987-88 there was frequent breakdown in the factory and on account of non-availability of the spare roller in the godown of the factory the closure hours of the factory increased making the crushing season unduly long which came to close on 4th April, 1988 even after transfer of the petitioner from the factory on 11.3.1988. While holding the petitioner guilty the authorities also failed to notice the fact that there was loss in sugar production on account of supply of stale cane which was due to frequent breakdown in the factory causing loss in recovery and increase of the production cost. While holding the petitioner guilty the authorities also ignored the fact that on account of increase in the labour rates, Dearness Allowance and the workers becoming permanent during the crushing season 1987-88 there was increase in the salary account of the workers and employees of the factory 18 causing increase in the production cost over which petitioner had hardly any control as the labour rates and other connected matters were under the control of the General Manager, the head office of the Corporation. 12. In view of my discussions above, there is no difficulty in concluding that petitioner has been made a scapegoat and sacrificed ignoring the General Manager with whom he is said to have cooperated in connection with Charge No. (iii)(b) and (viii). In the circumstances, the impugned Enquiry Report dated 17.11.1995, Annexure-6, second show-cause notice dated 18.2.1997, Annexure 5 and the dismissal order dated 27.08.1997, Annexure-13 are quashed. 13. The writ application is, accordingly, allowed. The Patna High Court The 4th day of November, 2010. P.K.P./A.F.R. (V.N.Sinha, J.)