IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.2603 of 1988 (O&M) Date of decision:23.12.2011 Sone Lal, Ex. Technical Assistant, Grade-I, Food Storage Depot, Ladhuka, Food Corporation of India, District Ferozepur. ...Petitioner versus The Food Corporation of India, through its Managing Director, 16- 20, Barakhamba Lane, New Delhi, and others. ....Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. C.M. Chopra, Advocate, for the petitioner. Mr. V. Ramswaroop, Advocate, for the respondents. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? No. 2. To be referred to the reporters or not ? No. 3. Whether the judgment should be reported in the digest ? No. ---- K.Kannan, J. 1. The writ petition relates to a challenge to the order of a termination of the petitioner from service. The challenge contained also the issue of competency of the Zonal Manager to issue the order of punishment. Originally the writ petition had been allowed finding that the Zonal Manager did not have such competency. The Division Bench affirmed the decision and in a further challenge to the Hon'ble Supreme Court, the finding was set aside and the case was remitted to the Division Bench for fresh disposal. In the Civil Writ Petition No.2603 of 1988 (O&M) - 2 - meanwhile, the petitioner had secured reinstatement, continued in service and was also superannuated. In view of the subsequent event of the petitioner having been reinstated and having been given also the past arrears, I found that there was no need to take up the case for consideration on merits and I had pronounced in open Court that the writ petition was being allowed but without going into the merits in view of the subsequent events. 2. The writ petition had been posted to be heard along with two other cases in CWP Nos.18432 of 2002 and 14738 of 2005 since they also related to the competency of the order of the Zonal Manager to pass the order of punishment. They were, however, on independent enquiry into the charges at a different point of time but when the cases were taken up for argument, the counsel for the petitioners in those cases contended that the parity in treatment required that the writ petitions shall be allowed without going into the merits of the case. Since an issue of 'equal treatment' was taken up, I recalled the order that was passed on 29.11.2011 and directed the case to be listed for arguments afresh. When the case was posted on 16.12.2011, I had directed the respondents' counsel to produce the original file of the Enquiry Officer and requested the counsel for both sides to make the submissions. The case was again taken up for arguments on 22.12.2011 for fresh disposal under such circumstances. Civil Writ Petition No.2603 of 1988 (O&M) - 3 - 3. On the issue of the alleged violation of natural justice by being not afforded adequate opportunity to defend himself, the learned counsel stated that the Enquiry Officer had set him ex parte on 20.08.1987 and the report was filed after examination of witnesses with no opportunity given to the petitioner to cross examine the witnesses. I have seen through the enquiry file and I will reject the contention that appropriate opportunity had not been given to the petitioner. I find that after the charge-sheet had been served on the petitioner, the case had been taken up for enquiry on 29.06.1987. On the appearance of the petitioner, it had been adjourned to 09.07.1987 but he was not present. A fresh notice was given on 22.07.1987. In the meanwhile, it was stated that the petitioner's father had expired and that he could not therefore participate in the enquiry. The case was again adjourned to 22.07.1987 when the petitioner sought for permission to file additional documents. The case had been adjourned to to 24.07.1987 but the petitioner did not appear and did not file additional documents. It was adjourned to 30.07.1987 when the witnesses were present but both the Presenting Officer and the petitioner were not present. It was again adjourned to 19.08.1987 when the petitioner was absent yet again. Two witnesses had been examined on that date and adjourned to the next date for examination of one witness cited by the Management. No further evidence was given and the Enquiry Officer proceeded to give the report. Civil Writ Petition No.2603 of 1988 (O&M) - 4 - 4. The learned counsel states that the petitioner's father had died and, therefore, his request for adjournment must have been conceded. The death had taken place more than two months prior to the date when the case was finally taken on 19.08.1987. There was no justification for seeking endless time on account of the death of the father. The learned counsel for the petitioner would contend that a letter of request giving details of his illness had been sent on 17.08.1987 but the letter which was said to have been received on 21.08.1987 was deliberately rejected without affording to the petitioner the opportunity to participate in proceedings. We have already noticed that two witnesses were examined on 19.08.1987 and only on 20.08.1987 when the case was posted for further examination, the Management had decided not to examine any further witness. There had been, in my view, sufficient opportunity for the petitioner to participate in the proceedings but he had not availed to himself such opportunity. 5. On the evidence which was placed before the Enquiry Officer, the learned counsel for the petitioner would contend that the charge itself was vague that he did not produce the documents which were demanded from him and that the stocks sold at the mandi had been grossly under weight and the reasons for the deficiency in the quantum of stocks had not been properly explained by the petitioner. The learned counsel would contend that he had been originally working in Jalandhar and the stocks purchased from the farmers had Civil Writ Petition No.2603 of 1988 (O&M) - 5 - been stored at the mandi in the stocks. He had been subsequently transferred to Ferozepur and still later at the time of enquiry, he had been transferred to Bathinda. All the relevant records were available at the Jalandhar office itself and there was no requirement for the petitioner to keep the records with him. Further several communications which were said to have been issued to him required him to explain the loss had not been shown to have been served on the petitioner. The learned counsel would further contend that the actual loss had not been quantified either in the Enquiry Officer's report or found expressed in the disciplinary authority's order. In this case, the witness examined on behalf of the Management had filed the documents P-1 to P-14. The copies of communications sent to the petitioner as well as to the higher officials requiring the petitioner to explain the shortfall in the stocks and requiring him to produce the records showed the actual purchase, the goods stored and other details. According to the evidence given, the stocks at the mandi were actually weighing only 40 to 45 kilograms as against the original filling of 70 kilograms. There were 13425 bags stored at the mandi in the open and only at the time of shifting of the stocks from the godown between 24.07.1982 to 18.10.1982, it was noticed that the stocks which were under the control and custody of the petitioner had been largely unaccounted for. The learned counsel contended vehemently that service of letters were not produced by the Management. When the Civil Writ Petition No.2603 of 1988 (O&M) - 6 - copies of letters are produced and the witnesses gave evidence of the fact that the communications had been served, I would not allow the petitioner who had not participated at the enquiry to make an issue of fact that there had been no proof of such service. I will take a normal presumption of the service of communications as available and more so in a case where the evidence of management witnesses regarding the service of notices were not tested in the cross examination. I will again discard the contention taken by the learned counsel for the petitioner that the actual loss had not been quantified. The total number of bags were specifically set forth. The weightage of bag regarding the actual filling and what was found in the bags at the time of shifting were also referred to. There was therefore an adequate proof of the loss. On an overall consideration, I am satisfied that the Enquiry Officer's report contained all the necessary details and the order passed accepting the Enquiry Officer's report was perfectly justified. 6. In the manner of punishment also, there is little scope for an inference except when the punishment is capricious or out of proportion to the nature of the charges. The charge was serious enough of large scale deficiency in stocks and insubordination arising on account of lack of response for the notices demanding the records to be delivered to account for the loss. I will not, therefore, find any reason to interfere with the decision finding the petitioner guilty. The counsel for the petitioner states that he had preferred an Civil Writ Petition No.2603 of 1988 (O&M) - 7 - appeal setting out several grounds but the appeal had been disposed of by a mechanical reproduction on what was contained in the Enquiry Officer's report and the appellate authority had dismissed it without properly considering the grounds taken. The learned counsel would rely on the judgment in Ram Chander Versus Union of India and others-AIR 1986 Supreme Court 1173, while dealing with similar provisions to Regulations that dealt with the manner of disposal of appeal under the provisions of the Railway Servants (Discipline and Appeal) Rules contained under Rule 22, when the Hon'ble Supreme Court held that the appellate authority must not only give a hearing to the Government servant concerned but also pass a reasoned order dealing with the contentions raised by him in the appeal. The reasoned decisions will promote public confidence in the administrative process. 7. While the disciplinary authority has found the reasons to confirm the Enquiry Officer's report and gives substantial reasons for confirming the Enquiry Officer's report while passing an order, the appellate authority need not engage in reproducing every line on the reasoning contained in the order of the disciplinary authority. The law laid down by the Hon'ble Supreme Court in Ram Chander's case must be understood in the context of the nature of charges and the type of evidence that was required to be appraised. In this case, the essential charges were just two: (i) insubordination of not handing over the records called for, and (ii) the unaccounted Civil Writ Petition No.2603 of 1988 (O&M) - 8 - loss of the shortfall in the stocks under the custody of the petitioner. If the fairness of the enquiry itself could be seen from the Enquiry Officer's file as regards the opportunity given to the petitioner for participating at the trial then the substantial issue would be only whether the petitioner had any reasons for not handing over the records or any tenable explanations for the shortfall in the stocks. Both these charges were such as to require minimal evidence and that had been brought through the witnesses who gave oral evidence and substantiated through communications said to have been made to the petitioner. An affirmation of the findings of the Enquiry Officer therefore did not involve an elaborate forensic exercise and the manner of disposal of the appeal was reasonable to infer that the appellate authority had given appropriate attention to the grounds taken. Indeed there was nothing substantial urged in the grounds other than what has been already reproduced in the course of this judgment as the contentions of the counsel appearing on behalf of the petitioner. 8. Under the circumstances, I do not find any error in the decision taken by the authority. I will find no reason to interfere with the same and challenge to the order of removal ought to fail. However, in this case, there is no question of giving effect to the order of removal. The petitioner had come by a favourable intervention when the writ petition was allowed on a preliminary point regarding the competency of the officer to pass an order of Civil Writ Petition No.2603 of 1988 (O&M) - 9 - removal. This was later set aside. Whatever salary that has been paid during the time when he served cannot be recalled. However, if there are any arrears of salary which had been paid during the period when he had not served by virtue of the order of reinstatement then the Management will be entitled to be restituted to the benefit which it had passed to the petitioner, provided there was an undertaking that in the event of a decision upholding the termination, the amount would be required to be refunded. If there is no such undertaking then the matter shall rest there, particularly in view of the fact that the amount had been paid and the petitioner has been superannuated from service. 9. The impugned order of termination is upheld but taking note of the subsequent event, the issue of terminating him from service does not arise. The entitlement of recovery of amount paid during the period when he did not work, that is, from the date of termination of service on the basis of impugned order till the date of reinstatement by virtue of High Court's order would depend on the nature of payment made to the petitioner at the time when the arrears of amounts were released to the petitioner. 10. The writ petition is disposed of on the above terms. (K. KANNAN) JUDGE 23.12.2011 sanjeev