1 1 IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.7825 of 1997 ========================================================== = Awadhesh Kumar Srivastava son of Sri Hari Shankar Pd. Srivastava, resident of Vill. & P.O. Barhoya, P.S. Siradei, Siwan .... .... Petitioners Versus 1. Bihar State Food & Civil Supplies Corporation Ltd. through its Managing Director Bir Chand Patel Marg, Sone Bhawan, Fifth Floor, Patna 2. Managing Director Bihar State Food & Civil Supplies Corporation Ltd. 3. Chief of Administrative, Bihar State Food & Civil Supplies Corporation Ltd. 4. Chief of Procurement, Bihar State Food & Civil Supplies Corporation Ltd. 5. Chief of Claim, Bihar State Food & Civil Supplies Corporation Ltd. Bir Chand Patel Marg, Sone Bhawan, Fifth Floor, Patna 6. The District Manager State Food & Civil Supplies Corporation, East Boring Canal Road, Patna P.S. Buddha Clooney, Patna .... .... Respondents ========================================================== = Appearance: For the Petitioner/s : Dr. Uma Shankar Prasad, Sr. Adv. : Mr. Kamala Kant Tiwary : Mr. Rajiv Kumar For the Corporation :Mr.R. S. Pradhan, Sr. Advocate ========================================================== = CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL ORAL JUDGMENT K. K. Mandal, J. Petitioner raises a grievance with respect to the order dated 8.8.1997 (Annexure-12) whereby, on conclusion of the departmental proceeding levied against him, he was imposed punishment of recovery of a sum of Rs. 9,70,446.75 P. Sustainability of the order dated 27.8.1997 (Annexure-16 to I. A. No. 4915 of 1997), passed by the Managing Director of the 2 2 Bihar State Food and Civil Supplies Corporation Ltd. (for short „the Corporation‟) is also under challenge whereby the petitioner was dismissed from service on the sole ground that the amount of loss quantified in Annexure-12 was not deposited by him in spite of adequate opportunity granted to him. Brief facts, necessary for disposal of the application may first be noticed/indicated. During the period 28.4.1983 to 3.12.1993 the petitioner served the Corporation as the Godown Manager in different rural area(s) of Patna. During this period, huge shortage(s) of food grains was/were found in the godown(s) placed under his charge. Accordingly, a show cause notice was issued to him on 31.6.1996. Petitioner replied thereto by document contained in Annexure-12. By Annexure-3, a supplementary show cause notice was served on him requesting his response thereon. There is no controversy that the allegation contained in show cause notice (Annexure-1) was treated as the charge(s) levelled against the petitioner. Petitioner filed an application (Annexure-4) making a request that the period during which he was placed under charge of these godowns be first audited. Obviously, this was not accepted and he was again issued notice to submit reply. By an application dated 12.9.1996 (Annexure-5) the petitioner again requested time for filing his reply. It appears from Annexure-5(i) that another application was filed by him for extending time. The authority by endorsement on the said application extended time till 3 3 30.9.1996. Petitioner instead of filing his reply/response, again made an application seeking extension of time on diverse grounds including illness of his father. In the meantime, the authorities by order dated 21.9.1997 appointed an Enquiry Officer to conduct the enquiry. Petitioner was issued notice to appear at the said enquiry on the date and time fixed therein and to adduce evidence. From materials on record, it appears that on one ground or another, the petitioner evaded filing of his reply. In the meantime, after issuing due notice to the petitioner, the conducting officer proceeded with the enquiry wherein several documents were brought on record and witnesses were examined on behalf the department. On conclusion of the enquiry, the enquiry report was sustained on 26.5.1997 wherein the charges were held proved. In other words, the petitioner was held responsible for the loss caused to the Corporation on account of his financial misconduct. On the same day the disciplinary authority issued second show cause notice to the petitioner enclosing therewith the enquiry report. The said document is on record as Annexure-10. From materials on record, it appears that the said notice elicited response from the petitioner (Annexure-11) wherein he elaborated his defence. On a consideration of entire materials including the report of the Enquiry Officer, and the cause shown by the petitioner, the disciplinary authority (respondent no.2) passed the order dated 8.8.1997 (Annexure-12) whereby he was made liable to replenish the Corporation for the loss(s) sustained by it to the 4 4 tune of Rs. 9,70,446.75 P. Petitioner was directed to deposit the same with the Corporation within a time-frame, failing which further stringent administrative action was to be taken against him. There is no dispute that petitioner did not deposit the said amount. The authority by order dated 27.8.1997 (Annexure-16) passed the order of dismissal in the following terms:- “Jh JhokLro dks xcu dh jkf’k fuxe ds [kkrs esa tek djus gsrq dbZ ekSdk fn;k x;k] ijUrq bUgksaus dHkh Hkh blds fy, igy ugha fd;k A bl izdkj Jh JhokLro fuxe dk fo’okl fcYdqy [kks fn;s gSa A vr% foHkkxh; dk;Zokgh ds lapkyu inkf/kdkjh dh vuq’kalk ds vkyksd esa Jh vo/ks’k dqekj JhokLro] mi izcU/kd] iVuk ds fo:) 9]70]446=75 :0 xcu dk vkjksi iw.kZr;k izekf.kr gksus ds QyLo:i bl fuxe dh lsok ls vkns’k fuxZr dh frfFk ls bUgsa c[kkZLr (DISMISS) fd;k tkrk gS A 2- Jh JhokLro }kjk xcu dh jkf’k 9]70]446=75 :0 tc rd fuxe [kkrs esa tek ugha dh tkrh gS] rc rd mDr xcu dh jkf’k ij 18% izfr’kr dh nj ls lwn dh jkf’k Jh JhokLro dks ns; cdk;k osru] vO;gr vodk’k] MsQMZ Mh0,0 rFkk xzsP;wfV vkfn ls olwy fd;k tk;A 3- Jh JhokLro }kjk dh xbZ xcu dh jkf’k dh olwyh muds bl fuxe ls feyusokys ikouksa ls lek;kstu djus ds mijkar ckdh 'ks"k jkf’k dh olwyh gsrq vU; dkuwuh dkjZokbZ dh tk;A” Petitioner has, thus, impugned both the orders as contained in Anenxures-12 and 16. Respondents have filed a counter affidavit which is on record. Dr. Prasad, learned counsel appearing in support of the application, made diverse submissions to assail the order contained in Annexure-12. He made an effort to demonstrate that charges framed against the petitioner was not correct. It is also contended that no adequate opportunity was given to the 5 5 petitioner at the enquiry in which ultimately he was held guilty for the loss caused to the Corporation in the sum of Rs. 9,70,446.75 P. Arguing further, he has criticized the manner in which the authority came to pass the order dated 27.8.1997 (Annexure-16) whereby the petitioner was dismissed from service and imposing other conditions. It is contended that dismissal of an employee is a major punishment. The authorities were required to frame specific charge in this regard and afford an opportunity to the petitioner to reply on those charges. All these processes were not even gone into. It is next contended that if at all the petitioner had not deposited the amount as per the order dated 8.8.1997 (Annexure-12), the respondents could have realized the same from the post retiral benefits/dues payable to him and/or from the salary to which the petitioner was entitled to even after the order contained in Annexure-12. There was yet another option with the authority to realize the amount by instituting a proceeding under the provisions of Bihar and Orissa Public Demand Recovery Act, 1935. When all these options were available then it does not stand to reason as to how in default of depositing the amount so quantified and imposed on him by Annexure-12 the authority could have proceeded to pass the order of dismissal and that too without complying with the procedure consistent with Articles 14 and 16 of the Constitution of India and the rules of natural justice. While supporting the action taken against the petitioner by Annexure-16, the respondents in paragraphs 4 and 6 6 5 of the counter affidavit have stated as under:- “That the order of dismissal of the petitioner from service was issued on 27th August, 1997 for reasons stated in the said order. True copy of the said order has been annexed to the writ petition and marked as Annexure-12 for identification. That indeed a compassionate view was taken by the Managing Director when chance was given to the petitioner to save his service and deposit the sum of Rs. 9,70,446.75 which the petitioner has failed to avail and protect himself.” In the counter affidavit, the respondents have, however, fully explained the manner in which the proceeding was initiated and concluded for imposing punishment of recovery of loss as contained in Annexure-12. It is well-settled beyond cavil that correctness or otherwise of the charge cannot be gone into by a Court exercising power of judicial review. What the Court has to see is that there is no serious flaw and/or breach of any statutory provision or the rules of natural Justice in the decision making process. In other words, the Court while exercising power under Article 226 has to oversee whether the proceeding has been taken up and concluded in a fair manner. On perusal of materials on record including averments made in counter affidavit, it appears that more than adequate opportunity was allowed to the petitioner to defend his cause. On his request, the time was extended. Several notices seem to have been issued asking him to appear and file his defence. Petitioner was also apprised of the date(s) on which the department was to examine the 7 7 witnesses. He was also called upon to examine witnesses on his behalf. There is no material on record to show that the petitioner did ever utilize these opportunities and/or approach the Enquiry Officer for cross-examining the witnesses. Learned counsel for the petitioner has contended that few documents necessary for submitting reply were not given to the petitioner. This Court finds from the materials on record including the counter affidavit that petitioner did never approach the authority for perusal of those documents by filing an application in this regard. On the contrary, it is seen that by document contained in Annexure-8 he requested for copy of the order which was furnished to him by communication dated 13.2.1997 contained in Annexure-8(i). What has been imposed on the petitioner by Annexure-12 is a minor punishment. For imposing minor punishment, the authorities are/were required to serve notice setting out the allegations/charges and documents in support thereof requiring response of the delinquent employee. On perusal of Annexure-6 and Annexure-7, it appears that copies of all relevant materials on which the department proposed to place reliance were furnished to the petitioner. This Court, on a consideration of materials on record, is of the view that no illegality as such has been committed by the respondents in initiating and concluding departmental proceeding resulting in imposition of punishment of recovery of pecuniary loss sustained by the Corporation which is a minor punishment. The submission of the petitioner in this regard is fit to be rejected. 8 8 Learned counsel for the petitioner has strenuously argued that no man reasonably instructed in law can countenance the action taken by the respondents as contained in Annexure-16. In his submission, the imposition of extreme punishment which is a death sentence in the realm of service jurisprudence cannot be imposed without adhering to the due process of law. learned counsel has argued that if the petitioner had defaulted in depositing the amount of loss caused to the Corporation due to his negligence and/or misconduct quantified in Annexure-12, then the authority could have passed an order realizing the same from the salary of the petitioner in instalment(s) and/or from the post retiral benefits/dues which the petitioner was entitled to upon superannuation. This court finds substance in the said submission of the learned counsel for the petitioner. There is nothing on record to show that for inflicting punishment of dismissal as contained in annexure-16, a fresh charge was framed and served on the petitioner requiring his response thereto. The authority has, therefore, blatantly violated not only the due process of law but also well recognized principles of audi alteram partem. That part of the order wherein he has been dismissed from service outrightly shocks the judicial conscience of the Court. I am, therefore, satisfied that part of the order contained in Annexure-16 requires to be interfered with and set aside whereby the petitioner has been dismissed from service. Accordingly, part of the order dated 27.8.1997 passed by the Managing Director of the Respondent-Corporation as contained 9 9 in Annexure-16 to I. A. No. 4915 of 1997 is quashed and set aside whereby he was dismissed from service. This Court, however, does not interfere with the remaining part(s) of the said order (Annexure-16). It has been informed by Dr. Prasad that petitioner has already reached the age of superannuation with effect from 28.2.2009. Obviously, he is not entitled for reinstatement in service. The Hon‟ble Supreme Court has held that once the Court or Tribunal interferes with the order of dismissal/removal from service, then the entitlement of full wages and salary for the period the petitioner was kept out of service is not automatic. The Court has to exercise the discretion distinct from the aforesaid relief based on materials on record. Keeping in view the involvement of the petitioner in misappropriation of huge government fund(s) and absence of any material to come to the conclusion that during this period he was not gainfully employed elsewhere. I am satisfied that for the period the petitioner was kept out of service he would be entitled to 50% of the salary he was drawing on the date of dismissal from service which would include the replacement scale thereof. In other words, he would not be entitled to draw any increment. If the service is pensionable then the petitioner would be entitled to count his service upto the age of his superannuation for the said propose. Let the respondents pay the petitioner his legal dues as per this order, after adjusting the amount to be recovered as 10 10 per order dated 8.8.1997 (Annexure-12) within ten weeks from the date of receipt/production of a copy of this order. ( Kishore K. Mandal ) Patna High Court Dated 24th November, 2011 HR/NAFR