THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.213 OF 2005 DATED DECEMBER, 2009 BETWEEN T.Nageswara Rao … Petitioner and The Area Manager, Area Officer, FACT Ltd., (Fertilisers and Chemicals Travancore Limited), Hyderabad. And Others … Respondents THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.213 OF 2005 ORDER: The petitioner, an employee of the Fertilisers and Chemicals Travancore Limited (FACT), challenges the punishment visited upon him under the proceedings dated 17.11.2004, whereby he was demoted from the post of Senior Depot Assistant to that of Depot Assistant with consequential reduction of pay and the FACT also proposed recovery of Rs.89,487/- towards the loss suffered by it, being the value of 9.150 M.Ts. of Factamfos fertiliser. The petitioner entered in the service of the FACT on 18.12.1985. The petitioner claims that he was appointed as a Depot Assistant while the FACT states that he was appointed as an Attender. Though there is also a dispute with regard to the dates pertaining to the upward movement of the petitioner in his career, it is an admitted fact that at the relevant point of time, he was working as a Senior Depot Assistant. As per the counter affidavit filed by the FACT, the petitioner was transferred from Kerala to Kakinada in East Godavari District, on 18.05.2000 and was posted at the Mandapeta Agro Service Centre, even prior to his promotion as a Senior Depot Assistant on 01.09.2001. He was given the additional charge of Tanuku Agro Service Centre (Tanuku ASC) under the proceedings dated 13.07.2002 which continued even after his transfer to Eluru, West Godavari District, on 07.10.2002. The petitioner also admits that he was kept in-charge of the Tanuku ASC on 13.07.2002, which was an additional charge over and above his regular duties as the Senior Depot Assistant of the Eluru Agro Service Centre. While so, the petitioner was issued Show Cause Memo dated 13.12.2003 in respect of a shortfall of 9.150 M.Ts. of Factamfos fertilizer, which was stored in the temporary godown attached to the Tanuku ASC, which was under the control of the petitioner. The said Show Cause Memo reflects that a total quantity of 275 M.Ts. of Factamfos, which was stored in the said godown, was billed to two FACT dealers, viz., M/s.Sri Rama Fertilisers and General Merchants, Gannavaram (150 M.Ts.) and M/s.Baneswara Fertilisers, Polavaram (125 M.Ts.). This stock was rebagged during July and August, 2003 under the supervision of a Committee, of which the petitioner was also a Member, and it was stated that during such rebagging no shortage was detected. However, after the rebagging, when the fertiliser was delivered to the dealers, a complaint was received from M/s. Sri Rama Fertilisers and General Merchants, Gannavaram, that there was a shortfall of 9.150 M.Ts. As the petitioner was the custodian of the stock at Tanuku ASC and its temporary godown, he was held responsible and asked to explain as to why action should not be taken against him in this regard. The petitioner responded to the said Show Cause Memo under his letter dated 02.01.2004 stating that during the rebagging process he had been asked to inspect the Agro Service Centre at Eluru and therefore a portion of the rebagging and delivery of the stock was done by the other Members of the Committee, in his absence. He further stated that the short delivery may be due to rebagging shortage or excess issue of stocks to the dealers by the Committee Members, in his absence. He disclaimed any responsibility in this regard and requested that the charges be withdrawn. Unconvinced by the explanation, the FACT issued charge sheet dated 05.03.2004 reiterating that while the petitioner was holding the additional charge of Tanuku ASC there was a shortfall of 9.150 M.Ts. of Factamfos fertiliser valued at Rs.89,487/-, out of the 150 M.Ts. billed to the FACT dealer, M/s.Sri Rama Fertilisers and General Merchants, Gannavaram, which was stored in the temporary godown attached to the Tanuku ASC. Stating that the petitioner was custodian of the said stock it was alleged that he had misappropriated the said quantity of 9.150 M.Ts. of Factamfos for his personal gain by short delivering the material. It was further stated that this action on the part of the petitioner constituted misconduct under sub-clauses (b), (c) and (o) of Clause 24(iv) of the Certified Standing Orders of the FACT, which read as follows: “Sub-clauses (b): Theft, fraud, or dishonesty in connection with the company’s business or property. (c): Willful damage to or loss of company’s goods or property. (o): Pursuance of a conduct against the interest of the company.” The petitioner submitted his explanation to the above charge sheet under letter dated 17.03.2004 stating that the stock of 275 M.Ts. of Factamfos stored in the temporary godown - M/s.Jayalakshmi Fertilisers, attached to Tanuku ASC, had been billed to the FACT dealers during February, 2003 and that the godown was handed over to the dealers on 01.03.2003 as was evident from the fact that rent was being paid by them. He therefore denied that he was the custodian of the stock and again reiterated that during the rebagging process he had been sent for ASC inspection at Eluru and that the stocks were rebagged and delivered in his absence by other Committee Members. He also reiterated that the short delivery may be due to rebagging shortage or excess issue of stocks to the dealers by other Committee Members. He accordingly disclaimed responsibility for the shortage and denied that he had committed the misconduct alleged. Thereupon, a departmental enquiry was instituted to look into the matter and by report dated 13.09.2004, the Enquiry Officer held the petitioner guilty of the misconduct as charged. In the course of the enquiry the FACT examined one witness, being its Sales Officer, and marked nine documents, while the petitioner adduced documentary evidence in the form of four exhibits and did not examine any witness. The petitioner was furnished a copy of the said enquiry report under letter dated 20.09.2004 and asked to submit his comments thereupon. Accordingly, he submitted letter dated 09.10.2004 reiterating what he had stated in his earlier reply dated 17.03.2004. Thereupon, the impugned proceedings dated 17.11.2004 were issued by the disciplinary authority stating that the charges proved against the petitioner were of a very serious nature but considering his past record, a lenient view was taken in the matter so as to afford him an opportunity to improve his conduct and the lesser penalty of demotion to the lower level of Depot Assistant with consequential reduction of basic pay to Rs.6350 + 5 PP in the grade of Rs.4500-90- 4950-100-6950 was imposed. The petitioner was also directed to remit the sum of Rs.89,487/-, the loss suffered by the FACT being the value of 9.150 M.Ts. of Factamfos, by a stipulated date. It is the complaint of the petitioner that he was not issued a Show Cause Notice informing him of the punishment proposed, prior to the issuance of the proceedings dated 17.11.2004. By order dated 26.04.2005 this Court, while admitting the writ petition, directed that the amount of Rs.89,487/- sought to be recovered from the petitioner should be recovered in 17 equal monthly instalments after deducting the amount already recovered from his salary. It is stated that the recovery has been effected in toto. In its counter, the FACT stated that the disciplinary action taken against the petitioner was a culmination of the regular enquiry held on the charges framed against him. It was pointed out that the petitioner alone was the custodian of the temporary godown and that the keys of the said godown were with him only. It was further pointed out that though the rent for the godown was paid by the FACT dealers from March, 2003, the rebagging was done by the Committee constituted by the FACT, of which the petitioner was also a Member. This rebagging was done in July and August, 2003 and therefore, the petitioner could not claim that he ceased to be the custodian of the stock merely because the dealers had started paying the rent for the godown from March, 2003. With regard to the ground raised by the petitioner that he was not issued a second Show Cause Notice prior to the imposition of punishment, the FACT stated that there was no such requirement in its Certified Standing Orders. The FACT accordingly stated that the punishment did not suffer from any illegality, infirmity or lacuna of jurisdiction. Sri S.Siva Prasad, learned counsel for the petitioner, stated that the Enquiry Officer failed to take into consideration several relevant facts and circumstances and therefore the findings recorded by him in his report dated 13.09.2004 stand vitiated. He further submitted that the charge sheet dated 05.03.2004 was vague, thereby disabling the petitioner from putting forth his defence effectively. The learned counsel also assailed the punishment visited on his client on the ground that the FACT failed to issue a second Show Cause Notice prior to the imposition of the punishment. The last ground urged by the learned counsel is that the FACT imposed a dual punishment upon his client in as much as he was not only demoted but was also visited with reduction in his pay scale. The same, according to the learned counsel, is in violation of the principles of double jeopardy. Sri G.Ramachandra Rao, learned counsel for the FACT, on the other hand, stated that the scope of judicial review by this Court in a matter pertaining to disciplinary action was limited and therefore, it was not open to the petitioner to expect this Court to sit in appeal over the findings of fact recorded by the Enquiry Officer. On merits, the learned counsel submitted that the material on record clearly demonstrated that the petitioner, being the custodian of the stocks in the Tanuku ASC’s temporary godown, could not avoid his responsibility and liability to account for the shortfall in the delivery of the stock to the dealer. As regards the ground urged that the charge sheet issued by the FACT was vague, the learned counsel submitted that full details had been furnished in the charge sheet dated 05.03.2004 and therefore the said ground was baseless and without substance. As regards the issuance of a second Show Cause Notice, the learned counsel submitted that after the amendment of Article 311(2) of the Constitution by the 42nd Amendment, there is no vested right in an employee to insist upon such a Show Cause Notice prior to the imposition of the punishment and in the absence of such requirement in the Certified Standing Orders of the FACT, there was no violation of procedure. As regards the third ground of attack with regard to imposition of dual punishments, the learned counsel submitted that consequent to the demotion of the petitioner from the post of Senior Depot Assistant to that of Depot Assistant, it was inevitable that his pay be correspondingly reduced. The learned counsel pointed out that the petitioner had not been placed on the minimum time scale but was placed in a correspondingly higher position at Rs.6,350/- + 5 PP. The learned counsel therefore submitted that this could not be treated as a punishment so as to apply the principles of double jeopardy. Sri G.Ramachandra Rao placed reliance on the Judgment of the Supreme Court in RAE BARELI KSHETRIYA GRAMIN BANK v. BHOLA NATH SINGH[1] to support his contention that this Court, in exercise of jurisdiction under Article 226 of the Constitution, would not act as an appellate authority. In the said Judgment, the Supreme Court pointed out that judicial review was not akin to adjudication of a case on merits as in an appeal but would only be limited to correction of errors of law or procedural errors leading to manifest injustice or violation of the principles of natural justice. It is well established that this Court in exercise of jurisdiction under Article 226 of the Constitution would not sift through the evidence recorded by the Enquiry Officer in the course of the disciplinary proceedings or act as an appellate authority over the findings of such disciplinary authorities. It is only if there is a manifest injustice owing to perversity of a finding or a finding completely opposed to the material on record, that this Court would interfere in such factual aspects. It is to be noticed that the petitioner was not consistent in his defence against the allegations levelled against him. In his first reply dated 02.01.2004, he stated that he was not present during a portion of the rebagging process and delivery of stocks, thereby disowning the responsibility for the shortfall. In his reply dated 17.03.2004 he took the additional ground that he was not the custodian of the stock after its billing to the FACT dealers in February, 2003. However, during the course of the enquiry, he marked Ex.P.7, being the letter dated 17.09.2003 allegedly addressed by him to the Senior Regional Manager of the FACT, stating that the shortage of 9.150 M.Ts. of Factamfos was found after rebagging, which had been informed personally to the Senior Regional Manager earlier. Relevant to note, this letter dated 17.09.2003 was addressed after the written complaint dated 11.09.2003 was received from M/s.Sri Rama Fertilisers and General Merchants, Gannavaram, the FACT dealer, who had billed the quantity of 150 M.Ts. and after the petitioner was put on notice of the same by the Sales Officer (P.W.1) under his letter dated 13.09.2003. Before this Court, the petitioner attempted to raise a new ground that the temporary godown of M/s.Jayalakshmi Fertilisers attached to Tanuku ASC was also used by Nyveli Urea and was thus, under the supervision of others. Relevant to note, this aspect was not raised by the petitioner during the enquiry proceedings. It is therefore not open to him to build up a new case before this Court. It is also to be noted that the petitioner did not deny that he was the sole custodian of the keys of the temporary godown. In the light of the inconsistent stands adopted by the petitioner in the course of disciplinary proceedings, it is not open to him to assail the cogent findings recorded by the Enquiry Officer in his report dated 13.09.2004. In any event, this Court would not sit in appeal over such findings of fact or substitute its views for those of the disciplinary/enquiry authorities, unless special grounds as aforestated are made out warranting the same. In the present case, no such special circumstances have been established requiring interference with these factual aspects. With regard to the charge sheet dated 05.03.2004, the contention of the learned counsel for the petitioner that the same is vague, does not hold water. The basis for the charge levelled against the petitioner was set out in detail and also the relevant clauses of the Certified Standing Orders which were applicable to the misconduct alleged against him. The amount of loss involved was also quantified, being the value of 9.150 M.Ts. of Factamfos. It is not disputed by the petitioner that the Certified Standing Orders of the FACT do not require issuance of a second Show Cause Notice proposing the punishment. After the amendment of Article 311(2) of the Constitution, as has been held by the Supreme Court in UNION OF INDIA v. TULSIRAM PATEL[2], the opportunity of showing cause at the post-inquiry stage has been taken away. Unless the regulations governing the service conditions of an employee require issuance of such a notice, the employee cannot assert any right to be put on notice of the punishment proposed to be imposed. In this regard, Sri G.Ramachandra Rao placed reliance on the Judgment of a learned Judge of this Court in K.V.RAMAKRISHNAIAH v. THE GENERAL MANAGER (P), THE SINGARENI COLLIERIES CO. LTD.[3], wherein the learned Judge, placing reliance on the observations of the Supreme Court in A.C.C. LTD. v. T.C.SHRIVASTAVA[4], held that a second Show Cause Notice or opportunity after the enquiry, as regards the punishment to be imposed was not required when the applicable Standing Orders do not prescribe the same. It is therefore not open to the petitioner to assail the disciplinary proceedings on the ground that he was denied such an opportunity. So far as the third ground of attack is concerned, it is the case of the petitioner that he was visited with two punishments and therefore the doctrine of double jeopardy would come into play. The learned counsel for the petitioner placed reliance on the Judgment of the Delhi High Court in NAND KISHORE KATYAL v. BANK OF INDIA[5], wherein a learned single Judge of the Delhi High Court found that imposition of two penalties, i.e., reduction to a lower grade and secondly, reduction to lower stage in the same time scale, were not permissible for the same misconduct. However, it is to be noticed that in that case, these punishments were specified separately under the relevant Regulations with the conjunction “or”. In such circumstances, the learned Judge was of the opinion that the word “or” should not be read as “and” and accordingly applied the doctrine of double jeopardy. However, it is contended by Sri G.Ramachandra Rao, learned counsel for the FACT, that the punishment imposed on the petitioner was that of demotion and the reduction in pay was only consequential upon such demotion. It is to be noticed that the petitioner was not placed on the minimum time scale applicable to the post of Depot Assistant and appears to have been placed on a correspondingly higher position within the time scale. The petitioner failed to make out that the consequent reduction in the pay scale which was inevitable on his demotion to the lower post is a separate punishment as per the Regulations. In the absence of the same, the Judgment of the Delhi High Court has no application. In the light of the same, I am inclined to accept the submission of Sri G.Ramachandra Rao that the same does not amount to a punishment, inviting double jeopardy. The petitioner therefore failed to make out any ground warranting interference with the punishment imposed upon him by the FACT after following the due procedure. The Writ Petition is devoid of merit and is accordingly dismissed, but without costs. ____________________ SANJAY KUMAR, J. ___________ DECEMBER, 2009. VGSR [1] 1997 (2) SLR 433 [2] AIR 1985 SC 1416 [3] 1995 (1) ALD 388 [4] AIR 1984 SC 1227 [5] 1989 (3) SLR 48