/\ F^ ^ t ^ HIGH COURT OF JUDICATURE CHHATTISGARH: BILASPUR Sin^le Bench: Hon'ble Shri Satish K. Agnihofari, J. WRIT PETITION N0. 2607 OF 1990 Petitioner : P.M. Dewaagaa Versus Respondents : The Food Corporation of India & ofhers Post for order on fc "Pebruaiy, 2006 Sd/- Satish K. Agnihotri Judge ~472.2006 -^- \^ HIGH COURT OP JUDICATURE CHHATTISGAmi: BILASPUR Smgle Beaeh: Hosi^ble Shri Satish K. Aga&ihotri, J. ^- WmT PBTITION N0. 2607 OF 1990 Petitioner : P.M. Dewangaii, aged about 43 years, S/o Shri Deen Dayal Dewaugaa, R/o Sakti, Post aad Tahsil Sakti, District Bilaspzir(C.G.). Versus Respondents :1< The Food Corporation of India 16 f 20, Barakhainba Laae, New Delhi, fhrough its Maiiagiag Director, 2. The Zonal Maaager (West) The Food Corporation oflndia, Zonal Office, Mistiy Bhawan, D.W. Road, Church Gate, Bombay-20. < 3, The Senior Regional Maiiager, The Food Corporation of India, The Regional Office, Chetak Buildio-g, Maliaraiia Pratap Nagar, Habibgunj, Bhopal (M.P.). 4. Shri N.N. Mukheqee, The Then Inquiiy Officer, Now District Maiiager, The Food Corporation of India, Near Giirudwara, MotiTabe.la, Gwalior (M.P.). Presesat: Shri S.P. Shamia, coiuisel for the petitioner. Shri B.P. Gzipta, counsel for fhe respondents. (^ ORDER (€thFebruary, 2006] The preseut petition filed under Article 226/227 of fhe ConstitLition of India impiigns fhe order dated 25.9.1987 (Aunexure P-13), whereby tlie Regional Manager, Food Corporatiou of India iinposuig flie penalty on tlie petitioner of "ReBioval" from ftie service of fhe Corporation and the order dated 12th September, 1988 (Annexure P-14), wherebythe appellate authority i.e. Zonal Manager (West)/respondeut No. 2 affiroied the findiags recorded by tiie disciplmary aufhonty an.d upheld fhe order of renioval passed by fhe discipUiiary azifhority, Accorduig to fh.e petitioner, fhe petitioner was workuig as Assistaiit Grade-II (Depot) at Food Corporation oflndia, Depot Naila zuider the District Manager, Food Corporation of India, BUaspur, The petitioner was issued charge-sheet of foUowuig ofarticle ofcharges :- "On 13.7.1978 two trucks ofSugar each contaming 100 bags dispatched Ex. Dabra ni truck No. MPW-1254 and MPG-9889 agaiast tmck chits No.4713 aad 4714, both dated-12.7.78 for laharwere got zinloaded at 'B? shed of FCI Depot, Gwalior on 13.7.78 by Shri PM Dewaagan, who was the shed mcharge of'B' shed. It was reported by fhe watchmaa poste.d on tlie shed fhat ui each the above tnicks only 95 bags agauist 100 bags totaliiig 190 bags agaiast 200 bags were unloade.d at the shed and duinped. The physical verification of sugar on B shed was therefore condzicted by Shri KK Khuraaa, Asstt.Maaager (Depot) Gwalior, associated by Shri PM ^ ^ i.. (3) Dewangan aiid a few ofher godown officials aad he fouiid that: i) 10 bags of sugar was short hi stack No. B- 2/4, where fhe above referred two trucks of sugar were unloaded, again.st dispatch of 200 bags and 190 bags were unloaded, agaiast dispatch of 200 bags aiid 190 bags were found hi the stack aad accounted for as 200 bags ui godowa register. u) 8 bags of sugar in. B-2/5 were fozind excess. 3 bags of szigar ia stack B-1/4 aa.d B-2/5 were also found excess/' Accorduigly, tlie petitioner was charge-sheeted for m.is-appropriation of 10 bags of sugar fozuid short in stack No. B-2/4 aad for not accountiiig for 8 excess bags of sugar fouud in atack No. B-2/5 arid siniilarly 3 bags of sugar found excess, He was accordiagly further charged for not Biauitamiag accoiuit as per procedure aiid allowiiig unloaduig of sugai' tnick at Gwalior uistead of Lahar wifhout permissiou ofth.e Assistaat Manager (D), FCI, Gwalior. The said charges pertaia to fhe period, when tlie petitioner was posted at Food Storage Depot, Gwallor. The petitioner, fhereafter, requested fhe respondent No. 3 vide letter dated 10.4.1985 to pennit fhe petitioner to visit Gwallor for verificatioii of fhe conceraed records. The petitioner was not peraiitted to have spot verification, but he was graated permission to have uispection of aU fhe docuuients Usted wifh. fhe HieBioraiidum. of charge-sheet at Regional Office, Bhopal. It is fiirther aUeged that Ust of additional docuinents aad C4.) namies of witiiesses were subxnitted by fhe petitioner by letter dated 19.2.1987. It was averred fhat the enquiry officer proceeded exparte ia fhe enqziiry, despite the facf that tlie petitioner has expressed inabiUty to attend fhe heanng an^d sent a telegrain accordiagly on 23.2.87. Thereafter, the petitioner was never iiiformed about the subsequent dates i.e. 26.3.87, 27.3.87, 28.3.87 aiid 29.3.87. PW-2, PW-3, PW-4, PW-5, PW-8, PW-9 suad PW-11 were exaiaiaed in. tlie absence of fhe petitioner betweeu tih-e period from 23.3.87 to 29.9.87. The enquiiy officer acted ia violation of pruiciples of natural justice aiid ia. perfunctoiy aad arbitrary manner by examniuig the witaesses in his absence and not giviag aa opportunity to the petitioner for cross examuiation oftlie said witaesses. The witaesses were cross exaiaiaed later on. The petitioner did attend the enqiury and subniitted, thereaffcer, written brief also to ftie enquiry officer, The enquiry officer subniitted fhe enquiry report on 26.6,87 (Annexure P-12), holdiug the charge as proved on the basis of fhe detailed enquuy conducted by him. The respondeut No. 3 by his order dated 25.9,87 iaiposed the penalty of "reinoval" on fhe petitioner froin the sei-vice of fhe Corporation. The appeUate authority i.e. respondent No. 2 dismissed the appeal of tlie petitioner by reasoned order, coufirmuig tiie order passed by tiie discipliiiaiy aufhority. (5) \ v\.. 7. Betag aggrieved, the petitioner has filed this petition seekiag a direction to quash fhe piuiishinent order dated 25.9.1987 and the appeUate order dated 12.9.88. 8. The respondents, in. flieir retuni, controverted fhe aUegations made in the petition subsaiitted fhat fhe petitioner has not availed altemative reniedy of filing review as provided under Regulation 74 of tiie F.C.I. (Staff) Regulations, 1971 framed under fhe provisions of fhe Food Corporation of India Act, 1964. Regulation 74 provides for filing of review to the superior aufhority Kke agauist tlie order of fhe Zonal Maiiager to flie Managiag Director. The petitioner has not exhausted tlie altemative reniedy before coraiag to fliis court. It was submitted _that fhe petitiouer was uot permitte.d to visit at Gwalior, as atl the documents which were required for verificadon, were available with the Senior Regional Manager, Office at Bhopal. No fruitftil purpose would have beeu served by gouig to Gwalior as fhe docuBients were iiot avaUable at Gwalior, but fhe saaie were aVailable ui the Regional Office, Bhopal. 9. The petitioner was graated perBiission for io.spection ofall fhe doczinients as deniaaded by hiai, The petitioner was granted 15 days tiine to nomuiate his defence assistance aiid the tiaie was again extended by 7 days for tlie purpose ofnoniinatmg defeuce assistance, which was done by ftie petitioner. The prosecution witaesses were exaoiiaed from 26.3.87 to 29.3.87 because all fhe prosecution witaesses were preseut aad flie petitioner was given fuU opportunity of cross exainuiiag flie C6; z. ^. <• witaesses aad as such fliere was no violation of pmiciples of uatural jiistice. The allegations that enqiuiy officer acted iii perfLuictoiy aad arbitraiy inaiiner was withozit aay basis. 10, Shri B.P. Gupta, learaed counsel appearing for fhe respondents reUed on decision of the Suprem-e Court ia Narayasa Dattatraya Ramteerthakhar V. State of Maharashtra1 m support ofhis contention tliat abseiice oftiie petitioner ia departaiental enquiry does not vitiate the enquiiy of full-fledged nature. The Suprerae Coiirt has held as zuider: 'The preUBiuiaiy enqiiiry has notliuig to do wifh the eiiquiry conducted after the issue of ti.ie charge-sheet. The former action would be to fiiid whether discipUiiaiy enquuy should be initiated agabist fhe deUnqiient. After fiU-fledged enquiiy was held, the preUmuiary euquiry had lost its imiportaiice?\ 11. The Supreme Court m J.A- Naiksatam Vo Prothosiotary Sessior Master, High Court ofBombay asid others2 has held as under:- "Lastly, itwas conteucted tliat the piuiishments iinposed on the appeUaiits are disproporfck):aate as there was no evidence at aU. to prove fhat these appellants received aay illegal gratification. It was prayed tliat tlie appellsjits are iD.nocent aad the clrastic punishment of disiiiissal should not have beeii imposed on them, In view of the present day situation of rampaut coiTuption in pubUc Ufe.^ tlie High Court rightly imposed the punishment of dismissal on erriag officers". 1AIR 1997 Supreme Court 2148, 2AIR 2005 Supreme Coiirt 1218 C7; \ 12. I have heard learned counsel for the parties aad perused the records appended to the pleadiags, 13. It is evideut that the enquiry of&cer has given fuU opportunity of heai'iiig to fhe deluiquent eniployee/petitiouer. The petitioner has niade nispection of aU tlie docziiaents relevant for the purpose of fhe. enquinr. The petitioner has exaniia.ed and cross examined aU fhe witaesses. There is no procedural flaw or perversify in. conduct of the enquinr. There is 110 violation of pruiciples of natnral justice or maadatoiy provisions of law. The enquiry officer after havuig conducted detailed enquiiy, found fhe petitioner guilty of cha^ges of coiTuption aad held fhe petitioner has violated Regiilatioii 31 aad 32 of F.C.I. (Staff) Regulations, 1971. Imposition of removal froni fhe seivice is not disproportionate, ia view of fh.e conduct oftlie petitioner, which has been found proved with malafide iiitention. The petitioner has cazised loss to fhe Corporation by his conduct. The disciplmary aufhorit}^ as weU as the appeUate azitih.ority have considered fhe enquiry report ia. detail whUe com.iag to the conclusion fhat tiie petitioiier deserves to be punished for removal froin the. seivice. It is weU estabUshed principle of law that ia exercis& of its jurisdictioii under Article 226/227 of the ^ Constitation of India, this Court does not sit as aii appeUate court, The High Court has limited scope of reviewiag fhe finduigs recorded by the euquiruig aufhonty, which was confirmed by the disciplinar)' azifhority as weU. as the appeUate authority. I have not fbund aoy per^ersity or w \. proce.dziral flaw m fhe enquhy aiid as such it does not warraat for any uiterference with the enquuy report. The punishnieiit of reraoval unposed on the petitioner, ui flie facts of fhe case aiid in. view of decisions of fhe Siiprenie Court is not disproportionate. 14. The Supreme Court ia Govt. of T.N. and others Vs. 8. Vel Raj3 has held as under :~ "The law on this point is also now weU-settled. The Tribzuial obviously comnxitted a inistake in. re- exaaiiam.g fhe evidence and holdiag that it did not desen7e to be accepted because of tlie iiiconsistencies fhereia. The Tribunal was uot holdiag a crimuial tdal and, therefore, ought not to have exonerated the respondeut by holding that it was not proved "beyond aU doubts that fhe appUcant had consumed prohibited Uquor?\ The. fmdiag recorded by the Enqnuy Officer and confirmed by ftie appeUate authority were based upon tiie evidence led duiiag Uie esiquiry aiid it was not even contende.d that the said findm.gs were perverse. It was, fherefore, not open to the Tribunal to record contrary fmdmgs aad hold that tih.e. charge agaiast fhe respondent was not proved". 15, Dnruig tlie coiirse of argzunents, tlie respondents have ofifered to raodify fhe punishment of renioval to coinpulsory retirenient, in case fhe petitioner is agreeable. The 3( 1997) 2 Supreme Court Cases 708 (9; Bablu respondents are accorduigly du'ected to cousider the case of the petitioner for modifyiag piinishinent of reiD-oval to fhat of conipulsory retirement. 16. For fhe reasons stated above, tiie. petition is disniissed. No order as to costs. i Sd/- 1 SatishK.Agnihotri \ Judge