1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 1617 OF 2009 Gauri Manikandan .. Petitioner Versus India Tourism Development Corporation and others .. Respondents Shri M.D. Nagle for the Petitioner Shri Ramesh Ramamurthy for Respondent-1 CORAM: SMT. RANJANA DESAI & SMT. MRIDULA BHATKAR, JJ. DATED : Reserved for order on: 9/11/ 2009 Order declared on : 20/01/ 2010 J U D G E M E N T (Per Mridula Bhatkar,J.) 1. Rule. 2. By consent of the parties taken up for hearing forthwith. 3. In this petition under Article 226 of the Constitution of India, the petitioner has challenged the orders/notices dated 4.8.2009, 30.9.2008 and 25.11.2008, holding her guilty for the misconduct of dereliction in duty and imposing penalty. 4. The petitioner is working with respondent no.1. She joined service as Sales Executive in July, 1992 at Delhi. She was confirmed 2 as Assistant Manager (Duty Free Trade Division) in November, 1995. In April, 1995 she was transferred to Mumbai on the same post and in June, 2001 she was transferred from Duty Free shop to Clearance Department. She took charge of the post in clearance department on 13.7.2001. Inspection and survey in the bonded warehouse was carried out during the period from 12th September, 2003 to 16th September, 2003 and the officers of the first respondent found huge shortage and breakages of stock. The petitioner, being in-charge of the Bonded warehouse, was suspended on 23.9.2003 by the first respondent and she was served with charge-sheet on 17.10.2003. She denied all the charges and filed her reply. 5. Domestic enquiry was conducted against the petitioner. Respondent-4 conducted the enquiry and submitted the report of enquiry on 17.8.2004, holding the petitioner guilty of certain charges. Respondent- 2 concurred with the findings in the enquiry report and as the major charges were not proved, major penalty was reduced to minor penalty, proposing to recover the financial loss suffered by the first respondent, by giving warning. The petitioner replied to the said show cause notice of penalty on 6.9.2004 and thereafter, for more than 3 years no action was taken by the respondents and the suspension 3 order was also not revoked. However, on 12.12.2007, the respondents issued final show cause notice imposing penalty of censure and recovery of loss to the tune of Rs.7,73,453/- i.e. 50% of the total loss of Rs.15,47,086/- from the petitioner. Alongwith the said show cause notice, the respondents have annexed computation of loss for the period from 5.11.1999 to 7.8.2003. The petitioner filed reply to the said notice. However, the first respondent passed an order on 4.8.2008, maintaining its stand about the punishment. 6. Being aggrieved by the order dated 4.8.2009, the petitioner preferred an appeal to respondent-3. Respondent 3 confirmed the said order on 30.9.2008 . Respondent-2, pursuant to that, by an order dated 25.11.2008, revoking the suspension, reinstated the petitioner and transferred her to Delhi. Being aggrieved by the above said orders, which according to the petitioner are perverse and illegal, the petitioner has filed this petition challenging them. 7. Learned counsel appearing for the petitioner submitted that the respondents have committed gross error in holding the petitioner responsible for the breakage and shortage of the stock. He has submitted that the respondents have wrongly computed the period 4 of shortage and breakages while calculating the cost of the stock from 1999 as the petitioner had taken charge of clearance department (Duty Free Shop) from 17.7.2001. It was submitted that petitioner alone was not in-charge of the said stock but the bonded warehouse always remain in the custody of the Customs, and central warehouse authorities. The petitioner was never involved in handling of the stock of the bonded warehouse but was engaged in liaisoning work with various departments such as customs, excise for clearance of consignment, renewal of licence and other day to day affairs. It was further argued that the chart giving specifications of the stock which found short or broken was never given to the petitioner earlier, during the enquiry but it was given to her in the year 2008 when the penalty of recovery of 50% cost of the shortage and breakages was imposed. He has submitted that the respondent has deliberately kept the petitioner in dark of the charges and she was not made fully aware of the charges which she was going to face. The respondents have committed error in holding the petitioner responsible for the breakage and shortage of the stock since 1999 when she was nowhere in the picture in 1999 and she has taken a charge of bonded warehouse (duty free shop) in July, 2001. It is further submitted that the petitioner had no experience of working in clearance department (Duty Free Shop) 5 and her predecessor Mr. Prakashan, despite her written demand, did not certify the stock at the time of handing over the charge to her. 8. To sum up following points are mainly agitated : i. No inventory was carried out when the charge of duty free shop (Clearance) was taken over by the petitioner on 3.7.2009, therefore the liability of the missing stock which was received prior to the date of taking of the charge cannot be saddled on the petitioner. ii. The petitioner is innocent and was not the only one exclusively in-charge of the warehouse but admittedly the said warehouse was jointly under the control of Assistant Manager (clearance) i.e. the petitioner and the customs department and therefore the petitioner can not be held responsible. iii. The petitioner was never made aware of the actual total loss i.e. Rs.15,47,086/- and as to how the 50% of the said amount was to be recovered 9. The respondents have opposed this petition by filing affidavit in reply of K. Murlidharan Manager (Duty Free shop). 10. Learned counsel appearing for the respondents argued that the penalty of warning/censure and the recovery of loss to the extent of 50% is proportionate and correct penalty. The petitioner, was, at the relevant time, in-charge of Chef Air Warehouse and CWC 6 Warehouse. It was her duty to maintain the stock in proper order, to take stock and look after the warehouses. It was denied that the stock of bonded warehouse was not certified when she took charge. The petitioner was directly involved in the maintaining of record of the stock and therefore she is rightly held responsible for the loss and the shortage of the stock. Learned counsel has further argued that special inventory committee carried out the inventory from 12.9.2003 to 16.9.2003 and it was not merely a farce as contended by the petitioner. Learned counsel has pointed out that the petitioner remained absent from 14.9.2003 and avoided her further responsibility to explain the discrepancy in the stock and tried to create it as ground for her future defence regarding the said discrepancy. The respondents have followed all the rules of th disciplinary enquiry and after giving full opportunity to the petitioner to meet the charges, she was held guilty of some charges. 11. Learned counsel appearing for the respondents explained that it is not correct that the petitioner was not allowed defence assistance of her choice. Mr. M. Manikandan was proposed as defence counsel. However, Mr. Manikandan being one of the members of the stock verification team constituted by the management of ITDC was cited as defence counsel by the witnesses for the 7 corporation. It was pointed out that alongwith the petitioner, the other officer Mr. Vijay Gaikwad who was also looking after the warehouse is found guilty, so the similar penalty is saddled on him. It was argued that there is no difference in the first show cause notice and the final show cause notice and merely the specifications in respect of the exact amount of recovery are given in the final show cause notice dated 12.12.2007. It is further pointed out that respondent-.1 corporation in Mumbai is closed down and therefore, there was no post available to accommodate the petitioner in Mumbai so she was transferred to Delhi and there is no question of giving her double punishment as contended by the petitioner. Therefore, it is submitted that the order of punishment imposed is correct and the petition is liable to be dismissed. 12. The petitioner was charge-sheeted for her failure to carry out physical verification of stock, and maintaining the stock ledger at the Chef-Air Bonded Warehouse and CWC. The petitioner was charge sheeted for being responsible for huge shortages and dereliction in duty, and negligence causing loss to the organization, besides damaging the reputation and goodwill of ITDC in the eyes of the Custom authorities under Rules 3.1i), (ii) and (iii) and Rules 4(i),(xi), (xiii), (xxx) 8 and (xxxvii) of the ITDC, CDA Rules, 2002, which reads as under: Rule.3.1 Every employee of the Corporation shall, at all times; i. maintain absolute integrity; ii. maintain efficiency and devotion to duty; do nothing which is unbecoming of a public servant; and iii. be obedient, observe discipline and carry out all lawful and proper orders Rule 4: (i) Willful insubordination or disobedience, whether or not in combination with others, of any lawful and reasonable order of his superior (xi) Commission of any act subversive of discipline or of good behaviour and failure to maintain a good turn out. (xiii) Willful damage or loss to work in process or to any property of the Establishment Corporation. (xxx) Abetment of/or attempt abetment of any of the above misconducts, and other act(a) prejudicial to the overall best interests of the Corporation. However, only the charges under Rules 3(ii) and Rule 4(xi) and (xiii) are proved and the charges on other counts could not sustain for want of evidence. 13. Nothing is brought on record by the petitioner to show any illegality in the proceedings of the disciplinary enquiry. It is an 9 admitted fact that the petitioner neither carried out inventory nor did she verify the stock in the warehouse at the time of taking the charge. The argument of the petitioner giving flimsy excuse for not conducting proper enquiry was rightly rejected by the enquiry officer. Nobody has prohibited the petitioner from carrying out the inventory of her own during her tenure as Assistant Manager (CWC). Incompetency cannot be pleaded as a defence when a person is officiating higher position in the establishment. We were quite surprised at the fact that the petitioner went on leave from 14th September, 2003 when the inventory was conducted by the Stock verification committee from 12.9.2003 to 16.9.2003. This conduct of the petitioner totally goes against her. There is no substance in the submissions of the petitioner that she is not accountable for the shortage in the stock and the loss shown by the respondents. It was made clear by the respondents that the petitioner is held responsible for the shortage of that stock which was though entered prior to her joining date but was shown available on that date as per the stock clearance register. Further, the respondents are fair in not imposing major penalty but only a minor penalty to the the petitioner alongwith her colleague Vijay Gaikwad who was also found responsible and was held guilty. So the recovery of loss to the extent to 50% quantified at Rs.7.73,453/- is correct. In the circumstances, we 10 do not find any error in the findings and the punishment imposed by the disciplinary authority. 14. In view of the above discussion, the petition is dismissed with no order as to costs. ( MRIDULA BHATKAR, J. ) (RANJANA DESAI, J.) 15. At this stage, learned counsel appearing for the petitioner states that the petitioner wants to challenge this order in the Supreme Court. He seeks stay of the order. Learned counsel for the respondents opposes the prayer. In the circumstances of the case, the interim order passed by this Court shall continue to operate for a period of six weeks from today. ( MRIDULA BHATKAR, J. ) (RANJANA DESAI, J.) jpc/-