WP(C) 7276/2002 BEFORE THE HON’BLE MR JUSTICE B.P.KATAKEY JUDGMENT & ORDER(ORAL) The petitioner, who was an employee of the Food Corporation of India (in short, FCI), by this writ petition, has challenged the order dated 16th September 2002 passed by disciplinary authority~ the Senior Regional Manager ~ imposing penalty of compulsory retirement from service in terms of the provisions of the Food Co rporation of India (Staff) Regulation 1971 (in short, 1971 Regulation). 2) The petitioner was served with charge memo dated 15th January 1998 on ba sis of the following article of charge, while he was working as an Assistant Gra de-III at their Silchar office: During 100% weighment conducted by Zonal Office(NE) Special IA & PV tea m, a huge quantify of foodgrains, sugar and 72 pcs. of gunnies were found short at Shed ’B’ in FSD Chinnamara. Sri Jadav Borah, AG-III(D) was the godown assista nt of the said shed and carried receipt/issue operations in the said godown. He laws closely associated with the Shed Incharge and Supervisory staff in day to d ay operations in the godown. Such huge discrepancies were in the knowledge of Sr i Jadav Borah, AG-III(D) by virtue of his active association of the deport opera tion on day to day basis. Some stacks were found not in existence even. He never reported any discrepancy to the Shed Incharge or any other superiors. Thus he concealed the shortage of foodgrains, sugar and gunny stocks in godown against the book balances written in the books of accounts and displayed lack of absolute integrity and devotion to duty. He laws a willful party for thi s large scale misappropriation/ bungling which caused losses to the F.C.I. to th e tune of Rs.1,01,28,915.63 paise in connivance with the shed incahrge and other staff and officers for his ulterior motive and personal gain. Sri Jadav Borah, AG-III(D), FCI, FSD, Chinnamara by his above act had fa iled to maintain absolute integrity, devotion to duty, serve the Corporation hon estly and faithfully and acted in a manner prejudicial to the interest of the Co rporation and thereby made himself liable for the disciplinary proceedings for v iolation of Regulation 31(a), (b), 32 and 32A(5) (9) (30) of the FCI Staff Regul ation 1971 . 3) The petitioner, on receipt of the aforesaid charge-memo, submitted his r eply on 10th February 1998 denying the charge levelled against him. On being dis satisfied with the reply of the petitioner, the management of FCI decided to hol d a disciplinary proceeding against him in terms of the provisions of 1971 Regul ation. Accordingly, an enquiry officer was appointed. A defence assistant was al so engaged by the petitioner to defend himself in the said proceeding. In all, 5 (five) witnesses were examined and cross-examined. Enquiry officer, on 31.12.201 1, submitted his report with the finding that the charge levelled against the pe titioner is proved. The petitioner, thereafter, in pursuance of a communication received from the respondent Corporation requiring him to make representations a gainst the finding recorded by enquiry officer, submitted his representation on 11.3.2002. Disciplinary authority, thereafter, passed the impugned order dated 1 6th September 2002 inflicting upon him the punishment of compulsory retirement a s noticed above. Hence this writ petition. 4) I have heard Mr AK Das, learned counsel for the petitioner as well as M r PK Roy, learned counsel for the respondents. 5) Referring to enquiry report dated 30th June 2001 and also the charge-mem o dated 15th January 1998, it has been contended by learned counsel for the peti tioner that the enquiry report has been submitted without any discussion of evid ences on record and that too on a charge which has not been levelled against the petitioner. It has also been submitted that it is evidenced from enquiry report that the enquiry officer is bent upon to record the finding against the petitio ner. 6) Referring to the record of disciplinary proceeding it has been submitte d by learned counsel for the petitioner that though under Regulation 58 a delinq uent is required to be afforded with an opportunity to make his statement and ex amine defence witnesses, no such opportunity was accorded to the petitioner, the reby violating the provisions of Sub-regulation (16), (17) and (18) of regulatio n 58 of 1971 Regulation. Learned counsel submits that though in the representati on submitted by the petitioner on 11.3.2002 against the finding recorded by the enquiry officer in his report it was specifically stated that there is nothing o n evidence on record to come to the finding that the charge levelled against the petitioner is proved, nothing on the evidence on record is discussed by the dis ciplinary authority. Learned counsel for the petitioner further submits that by taking up all those pleas petitioner filed an appeal before the Zonal Director ( now, Executive Director) on 8th October 2001, which is yet to be disposed of. 7) Learned counsel for the respondents, on the other hand, submitted that i t is evident from the order passed by the disciplinary authority on 18.9.2002 th at evidences on record were taken into consideration before passing the order, a part from the representation filed by the petitioner on 11.3.2002, though the en quiry officer in his report did not elaborately discuss evidences on record as a dduced in the disciplinary proceeding initiated against the petitioner and other delinquents. Learned counsel, however, fairly submits that the records of disci plinary proceeding as maintained by the enquiry officer do not reveal giving any opportunity to the petitioner to adduce evidence and make his statement, after closer of the evidence of the management. 8) I have considered submissions of learned counsel for the parties and als o perused the pleadings, apart from the record of the disciplinary proceeding as produced by learned counsel for the respondents. 9) It appears from record that the witnesses examined by the management in support of charge levelled against the petitioner were duly cross-examined by th e defence assistant who was engaged by the petitioner. Records do not reveal int imating petitioner about his right to make a statement in his defence ~ either o rally or in writing ~ and also his right to adduce defence witness. Records do n ot also reveal compliance of sub-regulation (18) of regulation 58 of the 1971 Re gulation, which requires the enquiring authority to generally question him on th e circumstances appearing against him in the evidence for the purpose of enablin g the employee to explain any circumstances appearing in the evidence against hi m. 10) Sub-regulation (16) provides that when the case for the disciplinary aut hority is closed, the employee shall be required to state his defence, orally or in writing as he may prefer and if the defence is made orally, it shall be reco rded and the employee of the Corporation shall be required to sign the record. I n either case, a copy of the statement of defence shall be given to the Presenti ng Officer, if any, appointed. Sub-regulation (17) provides that the evidence on behalf of the employee shall then be produced and that the employee may examine himself on his own behalf, if he so prefers. 11) A duty is cast upon the enquiring authority under sub-regulation (18) to generally question the delinquent on the circumstances appearing against him in the evidence, for the purpose of giving him the opportunity to explain any circ umstances appearing in the evidence against him, where the employee has not exam ined himself. 12) In the instant case, as discussed above, the records do not reveal givin g any opportunity to the petitioner or intimating him about his right to make st atement and to examine himself or any other witness in his defence. Records also do not reveal generally questioning the petitioner by the enquiring officer on the circumstances appearing against him in the evidence so as to enable the peti tioner to explain such circumstances. Such a provision has been incorporated wit h a view to enabling the delinquent to explain the circumstances appearing again st him in the evidence as adduced by the management. Even if an employee refuses to examine himself or any other witnesses, the enquiring authority is dutybound to comply with the requirement of sub-regulation (18) of regulation 58 of 1971 Regulation ~ that is generally questioning the delinquent on the circumstances a ppearing against him in the evidence. The whole purpose of incorporation of such provision is to give an opportunity to the delinquent to give explanation so th at the employee is not condemned unheard. It also appears that the enquiring aut hority, in his report dated 30th June 2001, has not discussed the evidences as a dduced in the proceeding conducted against the petitioner. Enquiry authority fou nd the petitioner guilty of a charge, which is not levelled against him in the c harge-memo dated 15th January 1998. The impugned order does not reveal considera tion of the evidences adduced in the proceeding as well as the grounds taken by petitioner in his representation dated 11th March 2002, where the plea of violat ion of principles of natural justice, in specific, was taken. 13) That being the position, the impugned order dated 16th September 2002 pa ssed by the disciplinary authority is set aside on ground of violation of the pr inciples of natural justice ~ that is for not affording the petitioner any oppor tunity to examine himself or any other witness, and for non-compliance of sub-re gulation (18) of regulation 58 of 1971 Regulation. 14) Disciplinary authority is directed to conduct enquiry against petitioner from the stage of giving him the opportunity to examine his witness, including himself. Enquiring authority, thereafter, shall submit its report after discussi ng evidences as adduced, against which opportunity shall be given to the petitio ner to make representations. Disciplinary authority shall, thereafter, pass nece ssary order in the disciplinary proceeding so conducted against the petitioner o n basis of the materials available on record. Since the petitioner has been work ing by virtue of the interim order dated 22nd November 2002 and is due to retire from service on attaining the age of superannuation in the month of June 2012(a s per present service record), disciplinary authority shall complete aforesaid p roceeding within six months from today. Needless to say, if disciplinary authori ty decides to take any disciplinary action against the petitioner then the petit ioner will be at liberty to pursue the legal remedy as is available to him. 15) The writ petition is accordingly disposed of as indicated above. No cost s.