IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP(T) No.3198/08(OA No.912/96) Date of Decision: 13th March, 2009 Partap Chauhan Petitioner Versus H.P.Agro Industries Corporation Respondent Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? Yes. For the petitioner: Mr.K.D.Shreedhar, Advocate. For the respondent: Mr.B.M.Chauhan, Advocate. Sanjay Karol, J. (Oral) The petitioner has filed the petition praying for the following reliefs:- (i) That the order dated 25.6.1996 (Annexure A-1) may be quashed and set aside. (ii) That the show cause notice dated 22.7.1995 (Annexure A-9) and the Report of the Committee supplied to the applicant vide memo dated 27.12.95 (Annexure A-13) may also be quashed and set aside. (iii) That respondents may be directed to produce entire record pertaining to the case and they may be further directed to specify the reasons for appointing four different Committees to inquire into the same charges; shortages in the C.P.F. Unit. Whether the reporters of Local Papers are allowed to see the Judgment? 2 Annexure A-9 is the show cause notice/Memorandum dated 22.7.1995 issued to the petitioner asking him to show cause as to why the proposed penalty of recovery of Rs.35,035.85 for the lapses pointed in the inquiry report be not effected. Annexure A-1 is the composite order dated 25.6.1996, whereby recovery from various officers, including the petitioner, was directed to be effected. Facts giving rise to the present petition are as under:- The petitioner was appointed as a Marketing Assistant with the respondent-Corporation on 20.10.1984. He was posted in the Cattle and Poultry Feeder Processing Unit (C.P.F. Unit) Parwanoo and in the year 1986-87 he was working as a Marketing Assistant in C.P.F.Unit. In June, 1986 Shri B.S.Chauhan, Storekeeper of the said unit was transferred and in his place on 17.6.1986 one Shri Harmohan Singh, Assistant Storekeeper, was brought in. The charge of the store was handed over to him on 26.6.1986 when apparently no shortage in the store was reported. Unfortunately on 24.12.1986 Shri Harmohan Singh, who proceeded on leave on 22.12.1986, died and in his place one Shri Shahsi Pal Gautam was transferred, who took over the charge as Storekeeper on 2.2.1987. However the actual charge of the Store was taken over by him only after the lying stocks were got verified and weighed. It took almost 8 days to physically verify the stocks. During the said verification, shortage of certain stocks was noticed and as such, the respondents decided to constitute a committee to look into the matter and make necessary recommendations. 3 A Committee comprising of Dr.T.K.Ghosh, Production Manager, Shri M.L.Mahajan, Divisional Manager and Shri A.K.Sood, Chief Accounts Officer, examined the matter in extensio and submitted its report dated 28.12.1989 (Annexure A-2/2). Importantly the Committee concluded that “it will not be possible to pin-point the shortages on any particular individual. The Committee further feels that the recommendations may be conveyed to the production Units and adhered to strictly”. It further held that shortage had taken place only during the period October, 1986 to February, 1987. Noticeably Shri Harmohan Singh died on 24.12.1986 and there was no storekeeper Incharge between December, 1986 to February, 1987. From the report it is evident that at no point of time the Committee came to the conclusion that the petitioner was duty bound to take care of the stores or supervise the persons deployed for the said purpose. The matter did not rest there as the respondent got the matter investigated through M/s Vij and Company, its Chartered Accountant, who submitted its report dated 25.9.1991 (Annexure A-4). Even they could not pin point the responsibility of any individual, much less the petitioner, but, however, advised that the matter be referred to the State Vigilance Department for further investigation. It is a matter of record that the matter was not referred to Vigilance Department, but, however, another Committee comprising of Shri M.L.Mahajan, D.M., Shri A.K.Sood, C.A.O. and Shri C.P.Sharma, C.P.O., was constituted. This Committee, in terms of its report dated 29.8.1992 (Annexure A-5), concluded that shortage in the store was spread over for a 4 period of atleast seven years. Certain recommendations and suggestions were made for proper deployment of staff and handling of stores. Importantly, even this Committee could not pin point anything against the petitioner. The respondent acted on the recommendation and in terms of letter dated 2.1.1993 (Annexure A-6) issued a “warning” to Dr.T.K.Ghosh, who was the Production Manager, Incharge, CPF Unit, Parwanoo. Vide another letter dated 27.5.1993 (Annexure A-7) Mr.Ghosh was asked to start recovery @ 50% of the total salary of each officer/ officials, who were allegedly found guilty. Importantly, the name of the petitioner did not figure anywhere amongst the said officers. For the purpose of better appreciation, the contents of the said letter are reproduced as under:- “The Management of the Corporation constituted a committee consisting of Shri G.P.Sharma, Chief Purchase Officer, Sh.A.K.Sood, Chief Accounts Officer and Shri M.L.Mahajan, Divisional Manager, Parwanoo to look into the shortages occurred in CPF Unit, Parwanoo. The said committee submitted the report on dated 29.8.92 which has been accepted by the Management and ordered that the recovery of shortages be made from the Production Manager (Dr.T.K.Ghosh), Sh.Ramesh Shirkot, Lab. Technician, Shri Vijay Pal, Senior Accountant, Shri Shahi Pal, Storekeeper, Sh. Som Kumar, Factory Supervisor and Shri Raj Kumar, Recovery Officer as per fault attributed to each official which may be established from the record available with you. If any other official is involved in the shortages his name be intimated to the H.O. for taking further action in the matter. As per Inquiry Report (Copy attached), only the names of the above official have appeared in the Inquiry Report. 5 The Committee have further reported that the shortage never surfaced because of the attitude of the officer/employees of the Unit for taking fake and false figures during the course of physical verification and the official Incharge never bothered to report the actual shortages to the H.O. in respect of each items. You are, therefore, requested to start recovery @ 50% of the total salary of each officer/officials from the salary for the month of May/93 onwards under intimation to H.O. in case the official is on deputation with the Asstt. Project Officer, IWSM Project, Kandi Area, Nalagarh, the same be intimated to him for starting recovery from the pay of May/93 onwards. The interest @ 20% be also recovered from each official from the date of default till full recovery of the principal. This may be treated as Most Urgent and given your personal attention. This has the approval of the Managing Director and I have been authorized to issue this letter.” (Emphasis supplied) Even at this point in time no action was taken against the petitioner. Not content with the action already taken, the respondent again constituted a Committee comprising of Dr. Roshan Lal, Shri Anil Sood and Shri J.S.Thakur to further investigate the circumstances and the causes leading to the shortage in the stores to the tune of Rs.2.33 lacs. The report dated Nil (Annexure A-13/1) submitted by this committee, however, held the petitioner guilty for misconduct. The relevant findings of the report qua the petitioner are reproduced as under:- “Shri Partap Singh Chauhan (Marketing Assistant and Shri Raj Kumar (Recovery Officer). 6 Shri Partap Singh Chauhan and R.K.Jishtu were assigned the duties to supervise the incoming/receipt of raw material, issue of raw material to the store keeper and the processing of feed by factory supervisor and as well as dispatch of the finished product. Had both these officers performed their duties with urgency and commitment to rules and procedure the chances of misappropriation of stores could have been avoided. At no time during the three months in question viz. January, 87 to March, 87 these two officers brought to the notice of the production Manager that working of the Feed Plant is not being carried out as per set procedures.” (Emphasis supplied) From the aforesaid, it is evident that the Committee has not given any conclusive finding with regard to the alleged acts of misconduct of the petitioner. The finding is vague and not definite as the Committee has observed that “chances of misappropriation of stores could have been avoided”. No doubt, as is apparent from the report that the petitioner was examined, but, however, it has not been indicated as to in what manner and with respect to what material the petitioner was examined. Based on the said report, the respondent issued a show cause notice dated 22.7.1995 (Annexure A-9) seeking recovery of Rs.35,035.85 as the petitioner was found “guilty of disloyalty towards the official duties and responsibilities by involving in shortages amounting to Rs.2,33,572.34 in the Cattle & Poultry Feed Unit, Parwanoo”. How and in what manner the petitioner was disloyal to his official duties has neither been narrated nor explained in the said notice. Importantly, the copy of inquiry report (Annexure A-13/1) was not supplied to the petitioner and it was only when he repeatedly wrote 7 to the respondents (Annexure A-11 and Annexure A-10) that the report was supplied to him and that too after a period of 5 months. Vide Annexure A-14 the petitioner replied to the same by taking a categorical stand that he had never handled the raw material for the finished goods/store(s) as these were handled by the store keeper/ store clerk and the factory Supervisor/ shift incharge who were dealing with the same. He made it clear that his job was to look after the marketing aspects of different activities in the Unit which were carried out by him sincerely and faithfully. Finally, the respondent passed a composite order dated 25.6.1996 (Annexure A-1), which is reproduced in toto:- “Whereas the show cause Notices were issued to the officials involved in shortages of Rs.2.33 lacs in the CPF Unit Parwanoo, vide No.AIC:3-8/92-5637-44 dated 22.7.95, proposing recovery therein: And whereas the concerned officials except Dr.T.K.Ghosh, Ex-production Manager submitted their replies/ representations which have been considered in depth by the Management. These representations have been found to be devoid of merit. Now therefore the undersigned on careful examination of records, orders to recover the amount of shortages of Rs.2.33 lacs from the delinquent officials as per recommendations and percentage fixed for individuals by the Inquiry Committee as under:- 1.Dr.TK.Ghosh, Ex.P.M. @ 30% Rs.70,071.70 2.S/Sh.Som Kumar, Factory Supervisor, CPF Unit @ 10% Rs.23,357.23 3. Shashi Pal, Storekeeper Feed Unit, Parwanu @ 10% Rs.23,357.23 4. Shri Ramesh Sirkot, Lab.Tech., CPF Parwanu @5% Rs.11,678.62 5. Vijay Pal, the then Acctt., CPF Unit, now in Pest. Plant, @ 5% Rs.11,678.62 8 Parwanoo 6.Raj Kumar, the then Recovery Officer now posted at Kumarsain @ 15% Rs.35,035.85 7.Pratap Chauhan, the then Marketing Assistant CPF P, now posted at Paonta @ 15% Rs.35,035.85 8. Rajinder Sharma, the then Clerk CPF Unit Parwanoo now posted/ permanently absorbed in RID Department @ 10% Rs.23,357.23 Dr.T.K.Ghosh, Ex. Production Manager retired on superannuation, hence the amount indicated against him be deposited by him within a period of one month in lump sum. The recovery from other officials be started from their salaries on the manner that amount in question be recovered in one year. The DDOs concerned shall report compliance, to Head Office.” From the record, it is evident that at no point of time the petitioner was ever required to look after the stores. In no manner was he ever associated with the duty of movement of the stores. It was for this reason that the various Committees constituted by the respondents could not find the petitioner to be negligent in any manner in discharge of his duties. Between the year 1989 upto 1994 there was nothing to prove that the shortage was directly or indirectly related to the petitioner’s negligence or alleged misconduct and that is the reason why the respondents did not take any action against him. In terms of the office orders dated 2.1.1993 and 27.5.1993 some disciplinary action had been initiated against the delinquent officials. Importantly, the petitioner’s name did not figure in any of the said communications. It was only after a gap of 8 years in the report of the 4th committee it was so found that the petitioner did not discharge his duties 9 carefully and hence was responsible for the loss or shortage of the stores. How and on what basis the Committee determined the petitioner to be liable to make good 15% of the loss is not evident from the record. Be that as it may be, the fact of the matter is that no notice formulating the charge in writing for the misconduct or dereliction of his duties was ever issued to the petitioner. The Committee, at best was a fact finding body. The inquiry was not a part of the disciplinary action initiated against the petitioner, to inquire into his misconduct. It cannot be termed as disciplinary proceedings. Examination of the petitioner by the inquiry committee cannot be held to be sufficient compliance of principles of natural justice, in the course and pursuant to the initiation of disciplinary proceedings against him. How and in what manner and to what extent he was examined during the course of inquiry is not evident from the record. It has also not been explained in the counter filed by the respondent. The respondent has framed Himachal Pradesh Agro Industries Corporation Ltd., (Staff) Regulations, 1981 (hereinafter referred to as the Regulations). Regulation 17(a) and 17(b) are reproduced hereinbelow:- “17(a) Without prejudice to the provisions of other Regulations, an employee who commits a breach of these Regulations or who displays negligence, inefficient or indolence, or who knowingly does anything detrimental to the interest or prestige of the Corporation or in conflict with its instructions, or who commits a breach of discipline or is guilty of any other act of misconduct or misbehaviour, shall be liable to the following penalties. Minor Penalties: (i) Censure (ii) With-holding of his promotion. 10 (iii) Recovery from his pay of the whole or part of any pecuniary loss caused by him to the Corporation by negligence or breach or order. (iv) With-holding of increments ………………………” “17(b) No employee shall be subjected to the minor penalties (i) to (iv) of Sub-Regulation (1) except by an order in writing signed by the Managing Director, and no such order shall be passed without the charge or charges being formulated in writing and given to the said employee so that he shall have reasonable opportunity to answer them in writing or in person as he prefers and in the latter case his defence shall be taken down in writing and read to him.” It is evident that if recovery from an employee for any pecuniary loss caused to the Corporation because of his negligence or breach is to be effected, then a notice framing the charge in writing is to be given to the employee. In the present case except for a show cause notice, Annexure A-9, there is nothing on record to show that any notice “formulating the charge” was ever issued to the petitioner. Bare reading of Annexure A-9 would show that no charge was formulated except for an assertion that the petitioner had been disloyal in discharge of this official duties. In my considered view this is not the charge contemplated for an inquiry against an employee. It is absolutely vague and unspecific. The defence taken by the petitioner, in fact was never considered or dealt with by the respondent while imposing the penalty and passing the order effecting recovery. Importantly the said order is composite order passed with regard to all the employees. In any event, it is not a reasoned order and, therefore, in my considered view neither the provisions of Regulations nor the principles of natural justice stand 11 complied with by the respondent before effecting recovery from the petitioner. The action of the respondent cannot be termed to be bonafide. It cannot be allowed to have a roving or a fishing inquiry and that too for an indefinite period. It cannot endlessly continue to inquire the matter over a period of atleast 8 years. No shortage was reported when Shri Harmohan Singh took the charge on 26.6.1986. The earlier report of the committee in fact had been accepted and therefore there was no need to hold another inquiry. In S.Ramanathan vs. Chief Judicial Magistrate, Chengalpattu and others, (2002) 10 SCC 473, the Apex Court held that even the order passed by the appellate authority has to be a speaking and reasoned order. In Kanailal Bera vs. Union of India and others (2007) 11 SCC 517, the apex Court has held as under:- “Once a disciplinary proceeding has been initiated, the same must be brought to its logical end meaning thereby a finding is required to be arrived at as to whether the delinquent officer is guilty of charges levelled against him or not. In a given situation further evidence may be directed to be adduced but the same would not mean that despite holding a delinquent officer to be partially guilty of the charges levelled against him another inquiry would be directed to be initiated on the selfsame charges which could not be proved in the first inquiry.” In the present case, three inquiries had actually absolved the petitioner and, therefore, the action of the respondent in initiating yet another inquiry that too after a period of 8 years and starting proceedings to recover the alleged losses is definitely against the law. The action cannot be 12 termed to be bonafide. Hence the show cause notice, Annexure A-9 and also the order dated 25.6.1996 qua the petitioner being illegal are quashed. For the aforesaid reasons, the petition is allowed. 13th March, 2009 (Sanjay Karol) (C) Judge.