IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3015 of 2001 AWADHESH KUMAR SINGH Versus THE STATE OF BIHAR & ORS ----------- 04- 2.5.2008 Heard Mr. Anil Singh for the petitioner, Mr. Ritesh Kumar, JC to learned AAG I,and Mr. Rajesh Prasad Choudhary for respondent nos. 2 to 5 (BISCOMAUN and its functionaries). This writ petition is directed against the order dated 17.2.2001 (Annexure 10), passed by the learned disciplinary authority, whereby the punishment of deprivation of two increments with cumulative effect has been inflicted on the petitioner, and it has been further ordered that a sum of Rs.1,56,613.66p. shall be recovered from him on account of having caused losses to BISCOMAUN during the course of sale of coal. 2. A brief statement of facts essential for the disposal of the writ petition may be indicated. The petitioner was at the relevant point of time, posted as Assistant Depot Manager, BISCOMAUN Coal Sale Centre, Nawab Bahadur Road, Patna City. He was placed under suspension on 17.11.89, on account of allegation of shortage of coal in the stocks. This was followed by FIR bearing Khaje Kalan PS Case no.125/89, wherein allegations against the petitioner were levelled under Section 409 of the Indian Penal Code for shortage of coal and causing losses to BISCOMAUN. The trial court convicted the petitioner and sentenced him to rigorous imprisonment for a period of two years along with fine. He preferred Criminal Appeal No.163 of 1993 which was allowed by the learned Additional Sessions Judge, he was acquitted - 2 - of the charges and the judgment of the learned trial court was set aside. BISCOMAUN preferred Criminal Revision No.44 of 1995 against the order of acquittal which was dismissed by this Court by order dated 4.1.97. 2.1) The petitioner was also served with memo of charges initiating departmental proceeding on the self-same charges. The petitioner appeared before the learned Enquiry Officer, submitted his show-cause, cross-examined the witnesses of the management and also produced his own witnesses in support of his defence. The learned Enquiry Officer submitted his report on 31.7.2000 (Annexure -13), wherein he, inter alia, found that the petitioner was not guilty of embezzlement and /or misappropriation of funds or property. He held that the petitioner was liable for shortage of 231.90 metric tons of coal and was also liable for the losses valued @ Rs.321/- per metric tons. 2.2) The learned disciplinary authority substantially agreed with the findings of the learned Enquiry Officer, but disagreed in details. The learned Enquiry Officer had held that the benefit of commercial shortage to the extent of 2 ½% of the stocks was permissible, whereas the learned disciplinary authority held that the petitioner was not entitled to the benefit as per the established procedure. Furthermore, the learned Enquiry Officer had erroneously evaluated the price of coal @Rs.321/- per metric ton which was really the price of stone coal. In the opinion of the learned disciplinary authority, the petitioner was liable for recovery @ Rs.675.35 per metric ton which was the price of fuel coal. The learned Enquiry Officer - 3 - accordingly issued show-cause notice dt. 9.11.2000 (Annexure 15), indicating therein the extent and the reason for disagreement with the findings of the learned Enquiry Officer. The petitioner had shown cause by his communication dt. 23.11.2000 (Annexure 16). On a consideration of the materials on record including the cause shown, the learned disciplinary authority passed the impugned order. Hence the writ petition. 3. While assailing the validity the impugned action, learned counsel for the petitioner submits that the impugned order does not assign reasons in support of the order of punishment. He relies on the order of a Division Bench of this Court reported in 2000 (3) PLJR 64 (Para 5) (Chandradip Sinha vs.State of Bihar). He next submits that the learned disciplinary authority has issued the show-cause notice (Annexure 15), disagreeing with the findings of the learned Enquiry Officer, without assigning reasons for disagreement. In his submission, this falls short of the legal requirement. He has placed reliance on the order of a learned single Judge of this Court, reported in 2007 (Supp) PLJR 426 (Para 9) (Jai Kumar Singh vs. State Bank of India). He lastly submits that, in view of the findings recorded by the learned Enquiry Officer, no recovery is possible, far less for an order of punishment. 4. The respondents have placed on record their counter affidavit. Learned counsel for the respondents has supported the impugned action. 5. We have perused the materials on record and considered the submissions of learned counsel for the parties. I would - 4 - prefer to deal with the second point advanced by learned counsel for the petitioner first. The learned Enquiry Officer has concluded as follows:- “earO;& mDr rF;ksa ds vkyksd esa esjk earO; gS fd Jh vo/ks’k dqekj flag]lgk;d HkaMkj izca/kd fu0 dks nks"keqDr djrs gq, lsok ls fuyEcu dk vkns’k okil fy;k tk; rFkk deh ds fy, eks0 69]785&40 iSls dh olwyh muds cdk;k osru ls lek;ksftr dj fd;k tk;]tSls fd dqN vU; dks;yk ds izHkkjh ls fd;k x;k gS A” (emphasis added) Learned counsel for the petitioner has laid considerable emphasis on the expression “……..nksieqDr djrs gq,… ” which, in his submission, means that the petitioner has been exonerated in the enquiry proceeding, a finding consistent with that of the criminal court and, therefore, there is no justification for the impugned order. The contention on the face of it is attractive, but does not survive a deeper scrutiny. It is manifest on a perusal of the enquiry report as a whole that the charges, inter alia, included that of embezzlement and/or misappropriation of funds and/or property. This finding “..nksieqDr djrs gq, …” is with respect to that part of the charge. It does not at all relate to the allegation of shortage of stock. The contention is, therefore, rejected. 6. As stated hereinabove, the learned Enquiry Officer found shortage of 231.90 metric tons of coal, after giving the petitioner the benefit of 2 ½% of the stocks by way of commercial shortage. Learned Enquiry Officer further found that this should be evaluated @ - 5 - Rs.321/- per metric ton which was really the price of stone coal. The learned disciplinary authority has disagreed with the findings of the learned Enquiry Officer in details, namely, the petitioner was not entitled to the benefit of shortage to the extent of 2 ½% of the stock, not permissible by the established procedure, and he has further disagreed about the price of coal. In his opinion, the learned Enquiry Officer has really found shortage of fuel coal which was priced at Rs.675.35, and not stone coal which was priced at Rs.321 per metric ton. In my view, the disagreement to this extent is clearly indicated in the show-cause dated 9.11.2000 (Annexure 15), calling upon the petitioner to explain his position. The petitioner did show cause. It is thus evident that the reasons for the disagreement which is indeed as to the details, has been clearly indicated in the show-cause notice. There was no disagreement in so far as the main or the basic findings are concerned. The grievance is thus unmerited. It, therefore, follows that the learned disciplinary authority was fully justified in passing the order for recovery of the amount for the reasons clearly indicated in the second show-cause notice, and the petitioner was also liable for punishment. The contention is rejected. 7. I must now deal with the first contention advanced on behalf of the petitioner that the impugned order does not assign reasons in support of the order. It appears to me on a perusal of the impugned order that the learned disciplinary authority was in full control of the materials before him, as briefly summarized the position in the impugned order which shows application of the mind. He is not - 6 - expected to write a detailed order like the enquiry report. His order has to be read with the detailed discussion in the enquiry report along with the reasons assigned by him for disagreement in detail in the show- cause notice. It would bear repetition that the learned disciplinary authority has substantially agreed with the findings of the learned enquiry officer and has only disagreed in details. The contention is rejected. 8. In the result, I do not find any merit in this writ petition. It is accordingly dismissed. mrl. (S K Katriar)