WP(C) 4917/2003 BEFORE HON’BLE MR. JUSTICE AMITAVA ROY JUDGMENT & ORDER (ORAL) The writ jurisdiction of this Court is sought to be invoked to a nnul the disciplinary proceeding drawn up against the petitioner herein culminat ing in the order dated 20.5.2003 awarding penalty of reduction to the post of AG -II(D) at the minimum of the pay scale as well as recovery of Rs. One Lakh to be deducted from his pay in 24 equal monthly installments. The petitioner has sinc e retired on 28.2.2007. 2. I have heard Mr C Baruah, learned senior counsel for the petitio ner and Mr PK Roy, learned Standing Counsel of the respondent Corporation assist ed by Ms A Chakraborty, Advocate. 3. The petitioner, while he was posted as AG-I(D) in the district o ffice at Bongaigaon, was served with a Memorandum dated 11.1.2001 imputing failu re to maintain absolute integrity and devotion to duty in terms of Regulation 31 (A)(b) and 32 of the FCI (Discipline & Appeal) Staff Regulations, 1971 (for shor t, hereinafter referred to as ’the Regulations’) in the face of an anomaly of st ock at FSD Banderdewa as on 31.3.98 where at the relevant point of time he was p osted in the same capacity. It was alleged that a shortage of 1255 bags of rice equivalent to 899.65 qunitals had been detected. In the statement of imputation of misconduct the aforementioned article of charge was detailed as hereunder: As per Book Balance As per P.V. Balance as on 31.3.98 as on 31.3.98 1. Stack No. 1/12 285 b/s=287.55 Qtls. Stock not available at the 2. -do- 1/18 614 b/s=274.97 time of P.V. (PV report 3. -do- 1/14 356 b/s=377.31 Annexure-VI) Thus the non availability of food stocks as per the consolidated P.V. re port of the D.M, North Lakhimpur to the total Quantity is 1255 bags=899.65 Qtls. The money value of which come to approximate more than six lakhs. . 4. The Memorandum of Charge was accompanied, amongst others, by a l ist of documents on the basis of which the disciplinary authority proposed to pr ove the same. The petitioner responded by his reply expressing his difficulty, a mongst others, to do so appropriately without going through the necessary docume nts. He, however, did not admit the charge. According to him, in course of the e nquiry that followed the document at serial No. 8 of the list thereof, namely, t he Special Physical Verification Report was withdrawn therefrom. On 19.2.2001, t he Presenting Officer having found that some of the listed documents had not bee n received by him, the enquiry was adjourned till 8.1.2002. The petitioner has a lleged that the same was thereafter taken up on 10.1.2002 in his absence and he was not afforded any opportunity to examine the documents. On the next date i.e. 23.1.2002 he submitted an application before the Senior Regional Manager offeri ng Sri Imdad Ali, Assistant Manager as his defence assistant in the disciplinary proceeding. Though one of the witnesses of the disciplinary authority, namely, Sri JC Saikia was examined on that date i.e. 23.1.2002, in absence of the petiti oner’s defence assistant he could not be cross-examined. On the next date i.e. 2 4.1.2002 the defence assistant above named though prayed for an opportunity to i nspect the documents, he was not allowed to do so on the ground that the enquiry was a time bound one for which he (defence assistant) withdrew from the proceed ing being unable to extend any assistance in defending the petitioner against th e charge. According to the petitioner, the remaining witnesses of the disciplina ry authority were examined on 14.2.2002 and 15.2.2002 and a report was submitted on 11.6.2002 a copy whereof was served on him. The petitioner submitted a repre sentation against the same principally contending denial of reasonable opportuni ty in the enquiry resulting in serious prejudice to his defence. He pleaded as w ell that the team that had conducted the Special Physical Verification, namely, Sri SC Goswami and others had not been examined and that the probe conducted by Sri D. Dwao, Assistant Manager was visibly perfunctory and misleading. By order dated 29.8.2002 the disciplinary authority imposed the penalty of dismissal on h im holding that the charge had been proved. Being aggrieved, the petitioner file d an appeal under Regulation 60(A) of the Regulations on a consideration whereof by the impugned order dated 20.5.2003 the penalty of dismissal was modified to one of reduction in rank to that of AG-II(D) with recovery of Rs. One Lakh from his pay in 24 equal monthly installments. 5. The respondents in their affidavit while denying the allegation of denial of reasonable opportunity as contemplated under the Regulations have i nsistently asserted that the charge levelled against the petitioner had been pro ved on the basis of the oral and documentary evidence and that the modified pen alty being the minimum in the facts and circumstances of the case, no interferen ce therewith in any view of the matter is called for in the exercise of this Cou rt’s power of judicial review. 6. Mr Baruah has argued that the disciplinary proceeding is vitiate d for having been conducted by the Inquiry Officer himself. Such a procedure bei ng visibly opposed to the principles of natural justice and fair play in action on that ground alone the same is liable to be adjudged non-est, he argued. He re iterated that the valuable right of the petitioner of being defended by a defenc e assistant of his choice and of cross-examining the witnesses of the disciplina ry authority had been consciously denied which too has invalidated the disciplin ary proceeding. According to him, the report dated 25.4.98 of the Special Physic al Verification Team totally belies the charge of shortage of 899.65 quintals of rice in the petitioner’s Depot and that, therefore, the impugned order is liabl e to be interfered with. Unfairness in action, according to him, is writ large f rom the unilateral withdrawal of the report of the Special Physical Verification Team from the list of documents which would have disproved the charge. Further, as the petitioner has since retired from service the penalty as imposed ought t o be annulled, he contended. 7. Mr Roy, on the other hand, with reference to the official record s has argued that the charge against the petitioner having been proved convinci ngly on the basis of the report, amongst others, submitted by the witness of the disciplinary authority, Sri D. Dawo, Asstt. Manager (Genl) of the FCI Regional office following an enquiry into the anomalies involved, the petitioner’s relian ce on the Special Physical Verification Report dated 25.4.98 is of no consequenc e. Referring to the orders passed in the disciplinary proceeding sequentially, M r Roy has urged that the grievance of want of reasonable opportunity is also unf ounded. As in any view of the matter the petitioner’s responsibility as the Supe rvisor of the Depot of which he was AG-I(D) at all relevant times cannot be deni ed, the reduced penalty of reduction in rank and recovery from his pay is commen surate to the proved charge and, therefore, no interference is called for. In su pport of is contentions, Mr Roy has placed reliance on the decision of this Cour t rendered on 27.4.2006 in WP(C) No. 2821/2003 (Sri Padma Kumar Bora -vs- Food C orporation of India & Ors.). 8. The pleadings on record and the arguments based thereon have bee n duly considered. 9. That the disciplinary proceeding in the instant case is claimed to be conducted in terms of Regulation 58 of the Regulations is a matter of reco rd. It is not the plea of the respondent Corporation that the petitioner had adm itted the charge. In that view of the mater, in terms of the aforementioned prov isions of the Regulations the enquiry as contemplated therein was essentially re quired to be conducted. Regulation 58(8) permits the delinquent employee to take the assistance of any other employee of the Corporation or any State or Central Government employee to present the case on his behalf, engagement of a legal p ractitioner being permissible only in the eventualities as mentioned therein. T he relevant records pertaining to the disciplinary proceeding, amongst others, d ivulge that by the order dated 11.12.2001 the Inquiry Officer required the Prese nting Officer Sri R. Barkataki, AM(G), R.O. Guwahati to be present in the enquir y with all the listed documents on 19.12.2001.On that date the Presenting Office r apprised the Inquiry Officer that some of the listed documents had not been fu rnished to him. The proceeding was adjourned till 8.1.2002 for the examination o f the documents. On 10.1.2002 though the Presenting Officer was present the peti tioner was absent. The Inquiry Officer, therefore, observed that no more chance for examination of documents can be given to him . He was, however, permitted t o go through the list of documents on the next date before commencement of the e xamination of the witnesses. Noticeably, therefore, though on 19.12.2001 all the listed documents were not at the disposal of the Presenting Officer and, theref ore, the Enquiry Officer and that the petitioner could not have had any opportun ity of inspecting the same because of his absence on the next date, no further o pportunity was accorded to him to do so. Instead, the Inquiry Officer fixed the disciplinary proceeding for examination of the witnesses on the next date i.e. 2 3.1.2002. On that date i.e. 23.1.2002 Sri JC Saikia, AG.II(D), District Office, North Lakhimpur was examined and from the order of the same date of the Inquiry Officer it is apparent that he could not be cross-examined due to the absence o f the defence assistant of the petitioner. The records do not manifest in clear terms as to whether at any time prior to this stage of the disciplinary proceedi ng the petitioner was made aware of his right of engaging a defence assistant to cross-examine the witnesses of the disciplinary authority. The dates for examin ation of the remaining witnesses of the disciplinary authority were fixed on 14. 2.2002 and 15.2.2002. Be that as it may, the records contain a letter dated 14.2 .2002 of Md. Imdad Ali, Assistant Manager (Accounts), defence assistant of the p etitioner seeking an opportunity to inspect the listed documents relatable to th e charge so as to offer meaningful assistance in the proceeding. The defence ass istant made it clear in his aforementioned letter that in absence of such inspec tion he would not be in a position to act as the defence assistant. He referred to therein the rejection of his request made. The records of the proceeding do n ot disclose participation of the defence assistant thereafter. 10. The disciplinary authority examined in all four witnesses during 23.1.2002 to 15.2.2002. Out of them, P.W.2, P.W.3 and P.W.4 had been cross-exam ined by the petitioner himself. There is no explanation forthcoming as to the re ason why the document at serial No. 8 of the list thereof accompanying the Memor andum of Charges had been withdrawn from the disciplinary proceeding. This assu mes significance in view of the fact that the same was the report dated 25.4.98 of the Special Physical Verification Team following a probe conducted by it bein g headed by Sri SC Goswami. He as well had not been examined as one of the witne sses of the disciplinary authority. 11. A plain reading of the report of the Inquiry Officer brings out his finding that the quantity of shortage of raw rice said to have been detected by the two Physical Verification Teams varied from one another. This conclusion is based on the disclosure from the two reports, one revealing shortage of 1255 bags of rice equivalent to 899.65 quintals and the other 47.50 quintals only. T his disparity cannot be discounted in the face of the charge levelled against th e petitioner to the effect that there had been a shortage of 1255 bags of rice e quivalent to 899.65 quintals thereof. The imputation of misconduct against him i s evidently founded on this charge. 12. Though P.W.3, D. Dawo, Asstt. Manager (Genl.) had tried to expla in the anomaly, the fact remains that the charge had not been altered at any poi nt of time. A plain reading of the order dated 29.8.2002 whereby the penalty of dismissal had been imposed upon the petitioner does not in specific terms take n ote of this apparent inconsistency in the two reports of the different sets of a uthorities of the respondent Corporation. This is significant as it is evident f rom the impugned order dated 20.5.2003 that the report dated 25.4.98 of the Spec ial Physical Verification Team is based on 100% weighment and the one in the ear lier Physical Verification Team was on a peripheral counting. The eventual reduc tion in the penalty was impelled by the consideration that in any view of the ma tter the petitioner as AG-I(D) being in-charge of the Depot concerned, could not be absolved of his responsibilities. 13. On a totality of the considerations as hereinabove, this Court i s constrained to hold that the disciplinary proceeding vis-a-vis the aspect of o pportunity to the petitioner to inspect the documents and to be assisted by a de fence assistant does not appear to be in compliance of the rigours of Regulation 58(8) of the Regulations. The report dated 25.4.98 of the Special Physical Veri fication Team apparently militates against the one which allegedly discloses a s hortage of 1255 bags of rice equivalent to 899.65 quintals thereof. This, in the opinion of this Court, demolishes the charge against the petitioner. 14. In the above view of the matter, having regard to the consistent and time tested judicial view emphasizing upon rigorous adherence to the proced ural safeguards prescribed, this Court is of the unhesitant opinion that the di sciplinary proceeding as well as the ultimate order of penalty vis-à-vis the pet itioner cannot be sustained in law and on facts. 15. The petition succeeds. The impugned order of penalty dated 20.5. 2003 is interfered with. No costs.