IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6492 of 2005 SHIV NANDAN RAM Versus THE BIHAR STATE FOOD & CIVIL SUPPLIES CORPORATION & ORS ----------- For the petitioner: Mr Uma Shankar Prasad,Sr Advocate Mr Bhuneshwar Pandey, Advocte For the Respondents: Mr R.S.Pradhan, Sr. Advocate ------------ 5 7.7.2008 Heard learned counsel for the petitioner and learned counsel for the Bihar State Food and Civil Supplies Corporation (hereinafter referred to as ‘the Corporation’). 2. Petitioner at the relevant time served as Assistant Godown Manager with the Corporation at Khagaria. He has filed this writ application against the order dated 8.4.2002 as contained in Annexure 12 whereunder he has been dismissed for defalcating Rs 4, 87,296.97 ps with further direction to recover the amount defalcated with interest at the rate of 18 per cent per annum with further direction not to pay any amount beyond subsistence allowance for the suspension period. 3. The memo of charge is dated 16.6.1995 and is contained in annexure l to this writ application where from it appears that the petitioner is alleged to have defalcated food grains from godown no.2, Bealdaur block Khagaria district in the years 1989-90 and 1990-91 worth Rs - 2 - 5,69,325.94 ps. He is also alleged to have defalcated 13 bales of clothes which was given to him under transfer receipt nos.25710, 25701 and 25702 dated 29.5.1992 worth Rs 1, 01,435.70 ps. Over the defalcated amount he was also liable to pay interest at the rate of 18 per cent per annum amounting to Rs 3,19,254.76 ps and the total amount defalcated together with interest which was directed to be recovered was Rs 9,90,016.40 ps . In response to the memo of charge the petitioner submitted his written defence disputing the allegations. According to him, the Audit team had not verified the amount of the shortage in the godown in the manner in which it was required to be verified. He further submitted in the written defence that 13 bales of clothes under different receipts as mentioned in the charge sheet were never given to him. The Presenting Officer, in support of the charge, examined four departmental witnesses namely, Sri Pitambhar Jha, Accountant, Sri Rajiv Ranjan District Manager, the successor of the petitioner and Sri Zafar Alam the Auditor. Out of four witnesses of the department, two of them Pitambhar Jha Accountant and Rajiv Ranjan District Manager supported the case of the - 3 - petitioner but considering the fact that Pitambhar Jha was also subjected to a departmental proceeding and was under suspension and that Sri Rajiv Ranjan the District Manger was transferred to the Flying Squad of the Corporation, the Enquiry Officer was of the view that their evidence should not be relied upon. The Auditor however reiterated his findings recorded in audit report and submitted that the food grains worth Rs 5,69,325.94 ps and 13 bales of clothes worth Rs 1,01,435.70 ps is required to be recovered from the petitioner as he can not be allowed the benefit of permissible loss in the godown as receipt and delivery from the godown was within six months . The Enquiry Officer in his report dated 10.11.2001 annexure 9, however, concluded that there has been defalcation of food grain but the quantum of defalcation of the food grain can not be ascertained as records are not available to ascertain the same. As regards 13 bales of clothes is concerned, the Enquiry Officer concluded that it is difficult for him to conclude that there was defalcation of 13 bales of clothes as invoice where under those bales of clothes were sent by the District Manager, Begusarai was sent to the Chief of - 4 - Clothes of the Corporation at Patna for correction of the invoices and it is not known whether corrected invoices were ever received by the petitioner. In view of the findings reached in the report the Enquiry Officer recommend that the petitioner be censured and his annual increment be withheld. It appears from page 80 of the brief that the recommendation of the Enquiry Officer to impose minor punishment was even accepted by the Managing Director on 21.3.2002 but before the said order could be communicated to the petitioner, the matter appears to have been reconsidered and in the light of the reconsideration made the impugned dismissal order dated 8.4.2002 annexure 12 has been passed. 4. Learned counsel for the petitioner assailed the punishment order on the ground that the Enquiry Officer having failed to quantify the extent of food grain which was found defalcated the punishment of dismissal is too severe. He further submitted that other charge about defalcation of 13 bales of clothes having not been proved the authorities had rightly imposed minor punishment on 23.1.2002 and the same should not have been reconsidered and dismissal order - 5 - passed. In this connection learned counsel has also relied on the reports of the District Manger dated 1.6.1996 Annexure 5 and 7.6.1996 annexure 6 whereunder the District Manager confirmed the submission of the petitioner that the Audit team could not make complete audit as documents were not made available to the team which fact was also admitted by the Auditor in his audit report. 5. Learned counsel for the Corporation has opposed the submissions and the prayer made in the application. He submitted that the Auditor having submitted the audit report charges were framed against the petitioner where after he filed written defence and the Enquiry Officer examined the same and submitted his report which was considered by the Disciplinary authority and on 23.1.2002 the Competent authority decided to impose minor punishment but before such minor punishment could be communicated to the petitioner the decision to impose minor punishment was reviewed which was within the competence of the Disciplinary authority to review the punishment as the same was not communicated to the petitioner and in the light of the decision to impose major - 6 - punishment the petitioner was served with second show cause notice which is dated 11.2.2002 as contained in annexure 10. In response thereto the petitioner submitted reply dated 20.3.2002 as contained in annexure 11 and in consideration thereof the punishment order has been passed and as the Enquiry Officer has found allegation of defalcation of food grain correct, this court should be slow in interfering with the impugned order. 6. Having heard the learned counsel for the parties and having perused the memo of charge, enquiry report, second show cause notice and other relevant documents appended to the writ application, I am of the view that as the Enquiry Officer himself has not been able to establish the extent and quantity of the food grain which was defalcated as also the fact that the charge of defalcation of 13 bales of clothes has not been proved the punishment imposed i.e. dismissal appears to be severe and accordingly punishment order is set aside and the matter is remitted back to the Managing Director to impose any punishment other than the dismissal/removal from the service of the Corporation in the light of the enquiry report as also the - 7 - reports of the District Manager as contained in annexures 5 and 6 to this application. Appropriate punishment order be passed by the Managing Director within two months from the date of receipt /production of a copy of this order. While passing the order the Managing Director shall also consider whether the petitioner should be paid arrears of salary for the period of suspension as also for the period between dismissal till the date of reinstatement. shahid (V.N.Sinha, J)