HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Reserved on 11.08.2014 Delivered on 17.04.2015 Court No. 17 Case :- SERVICE SINGLE No. - 2525 of 2002 Petitioner :- Om Prakash Lal Respondent :- F.C.I.Through Its Its M.D.And 3 Ors. Counsel for Petitioner :- M.M.Ahmad,Mohd.Mansoor,Zubair Hasan Counsel for Respondent :- A.K Singh,Kamesh Gupta,Kamlesh Gupta,Ms. Veena Sinha,Mukund Tiwari Hon'ble Sudhir Agarwal,J.
1. This writ petition is directed against the order of punishment imposed upon petitioner as a result of disciplinary proceedings, whereagainst he has failed in appeal and in review both.
2. That facts, in brief, giving rise to the present dispute are as under.
3. The petitioner was appointed as Assistant Grade III (Depot) on 24.05.1972 in Food Corporation of India (hereinafter referred to as the "FCI"). He changed his cadre and came to join as Technical Assistant Grade III from the cadre of Assistant Grade III in 1976. He was promoted as Technical Assistant Grade II by the Zonal Manager (North), FCI, vide order dated 05.10.2000 and thereafter to the post of Technical Assistant Grade I (P/P). It is not disputed that the post of Technical Assistant Grade II and Technical Assistant Grade I are Cadre III posts in FCI.
4. A charge-sheet dated 23.02.2000 (Annexure-4 to the writ petition) was served upon petitioner on 25.02.2000 containing three charges of contravening Regulations 31, 32 and 32-A of Food Corporation of India (Staff) Regulations, 1971 (hereinafter referred to as the "Regulations, 1971"). The aforesaid charges pertain to the period of 1998-99 when petitioner was posted as Technical Assistant Grade II at FCI Depot, Barabanki, Phase II.
5. Denying the allegations contained in charge sheet, petitioner submitted his reply dated 02.03.2000. Vide order dated 06.03.2000 issued by disciplinary authority, one Sri V. Uniyal, Divisional Manager (QC) (Retired) was appointed as Inquiry Officer and one Sri S. Zafar, Assistant Manager (QC) was appointed as Presenting Officer. After completion of oral inquiry, the Inquiry Officer submitted report dated 28.06.2000 (Annexure-8 to the writ petition). The Inquiry Officer held that charge No. 1 vitiated by itself since contrary version was given by the Department. In charge No. 2 the allegation of loss of over Rs. 10 lacs leveled against petitioner was not proved and charge No. 3 was not proved at all.
6. The Senior Regional Manager disagreeing with part of inquiry report in so far as it held petitioner not guilty of the charge regarding acceptance of BRL rice of impermissible quality detected in Zonal Vigilance Squad visit in April 1999 and regarding its reasons therefor, issued a show cause notice to petitioner on 09.10.2000. The petitioner submitted his representation dated 18.10.2000 attempting to persuade disciplinary authority to accept inquiry report. The Senior Regional Manager, however, passed the order of punishment dated 28.02.2001 (Annexure-1 to the writ petition) for recovering a sum of Rs. 28062/- and reduction in three stages in present time scale for five years with no increment during aforesaid year.
7. The petitioner preferred appeal vide memo of appeal dated 23.03.2001 before Zonal Manager (North), which has been rejected vide order dated 19/20.04.2001. Thereafter he came to this Court in Writ Petition No. 1387 (S/S) of 2001, which was disposed of vide judgment dated 27.06.2001 on the ground of alternative remedy of review. The petitioner then filed review but the same has also been dismissed by Managing Director, FCI vide order dated 02.01.2002 (Annexure-3 to the writ petition).
8. It is contended that while disagreeing with the report of Inquiry Officer the disciplinary authority did not afford any opportunity of hearing to petitioner, i.e., oral hearing though petitioner requested for the same in his representation dated 18.10.2000 and, therefore, the punishment imposed upon petitioner is in utter violation of principle of natural justice. It is further contended that there was a contradiction between the statement of article of charge and the statement of imputation of misconduct and without explaining the contradiction thereto disciplinary authority held the charge proved against petitioner which is illegal. The third aspect is that contradiction in evidence, documentary and oral, noticed by Inquiry Officer has completely been omitted by disciplinary authority and it has referred to one sided version in the statement of disagreement without discussing otherwise evidence available on record which has been considered by Inquiry Officer and, therefore, findings of disagreement, recorded by Senior Regional Manager (Disciplinary Authority) is perverse as it omits the relevant otherwise evidence otherwise available on record which has not been looked into and discussed at all. Then it is also contended that the punishment order shows that it has found the charges proved on the basis of joint analysis at RO Lab. Lucknow conducted in presence of Sri G.S. Mishra, AM (QC) though Sri Mishra was never examined and it treats the said report as a fundamental document though the Inquiry Officer found that even testing was not done in accordance with the procedure prescribed in the manner.
9. Learned counsel appearing for FCI, however, sought to support the impugned orders for the reasons stated therein and contended that neither there is any violation of principle of natural justice nor there is any otherwise illegality in the procedure of disciplinary inquiry, conducted by respondents and, therefore, this Court should not interfere in exercise of extraordinary jurisdiction under Article 226 of the Constitution.
10. I have heard learned counsel for the parties and perused the record.
11. The three charges leveled against petitioner in statement of article of charge, read as under:
"Article-I:
Shri O.P. Lal, Technical Asstt. Grade-II accepted Beyond Rejection Limit Rice at FSD., Barabanki Phase-II which was detected during visit of Zonal Vigilance Squad of New Delhi in the month of April, 1999. This caused financial loss amounting to Rs. 28,062.24 to Corporation.
Article-II:
Shri O.P. Lal, Technical Assistant Grade-II accepted and dispatched BRL/Sub-standard rice Ex. Barabanki Phase-II to Ballia, Ghazipur and Deoria during December, 1998 and January, 1999 which fetched the quality complaint from the destinations followed by receipt of F.L.A.S. amounting to Rs. 2,49,972.53 at FSD. Ballia, Rs. 3,07,359.62 at FSD., Ghazipur and Rs. 2,40,739.17 and Rs. 2,41,710.00 at FSD., Deoira.
Article-III:
Shri O.P. Lal, Technical Assistant, Grade-II is responsible for dumping of 340 bags of rice stock inside shed in connivance with Unit Incharge with the intention to adjust the below quality of rice on 16.2.99."
12. However, in the statement of imputation of misconduct, Annexure-II to the charge-sheet, the entire details have been given in reference to visit of Zonal Vigilance Investigating Team made on 17.02.1999 and not of April, 1999 and the sample collected by it. The aforesaid sample was analyzed at Regional Office Lab., Lucknow from 17th to 18th February, 1999. It was found that BRL in respect to broken and dehusk kernals was 32.5% and 17.0% against the permissible limit of 27% and 12%. This shows that he has accepted impermissible quality of rice and has caused financial loss to the extent of Rs. 28,062.24 to FCI.
13. The findings recorded by Inquiry Officer and his conclusion in respect of three charges was as under:
"Article-I: Vitiated by itself.
Article II: Except for an element of excess broken in the stocks accepts in Barabanki Phase-II, the alleged charge with respect to loss over 10 lacs suffered by FCI is not proved.
Article III: Not proved because of lack of evidence."
14. In the show cause notice I find that statement of disagreement shown by Senior Regional Manager is confined to the allegations which formed part of Article-I only, meaning thereby the findings of Inquiry Officer in respect of Articles II and III was not dissented with and, therefore, to that extent the Inquiry Officer's finding stood accepted and attained finality.
15. The disciplinary authority in its show cause notice dated 09.10.2000 has not stated specifically as to whether it has disagreed with the findings of Inquiry Officer respect of Article-I only or other articles also but from a perusal of show cause notice it is evident that in respect to Articles II and III, findings of Inquiry Officer have not been referred to, discussed and no finding for disagreement has been stated, therefore, the necessary corollary of perusal of show cause notice dated 09.10.2000 is that the disciplinary authority accorded its disagreement only in respect to Article-I and not to others.
16. In the appellate and review order also, on this aspect nothing has been stated categorically. The facts discussed therein make it clear that the entire case has been confined in respect of allegations contained in Article-I and that is how, besides stoppage of increment for five years, recovery of only Rs. 28,062.24 has been ordered.
17. Now in respect to Article II, the first contradiction I find is in the reproduction of Article-I in the statement of articles of charge contained in the charge-sheet and Article-I noted in the impugned order of punishment. Both are reproduced as under:
As per charge-sheet Shri O.P. Lal, Technical Asstt. Grade-II accepted Beyond Rejection Limit Rice at FSD., Barabanki Phase-II which was detected during visit of Zonal Vigilance Squad of New Delhi in the month of April, 1999. This caused financial loss amounting to Rs. 28,062.24 to Corporation.
As per impugned order of punishment "Shri O.P. Lal, Tech. Asstt. II accepted BRL Rice at FSD., Barabanki Phase-II in the month of Feb. 1999, which caused financial loss amounting to Rs. 28,062.00."
18. It is not brought on record that any corrigendum to the charge sheet was issued at any point of time. Article-I, therefore, relates to visit allegedly made in April, 1999 but in the punishment order the respondent-disciplinary authority on its own has taken it as of February, 1999 though the charge sheet has never been amended or corrected during disciplinary proceedings. It is no doubt true that in the statement of imputation of misconduct, the date of visit by Zonal Vigilance Investigating Team is said to be 17.02.1999 and the analysis at Regional Office Lab is of the period of 17th to 18th February, 1999. The Inquiry Officer has noticed this fact that Zonal Team visited Lucknow during February, 1999 and remained at Lucknow between 15th to 19th February, 1999. For this purpose, it relied on the Exhibit D1, which was brought on record by PW-3. It is in these facts the Inquiry Officer has noticed, "even the statement of imputation of misconduct or misbehavior provided in support of Article-I does have a different version."
19. In the so called dissenting note and the findings given by disciplinary authority, i.e., the show cause notice dated 09.10.2000, nothing has been said on this discrepancy. It is totally silent thereon.
20. The Inquiry Officer also found that in the TA bill submitted by Zonal Investigating Team there was no mention of their visit to Barabanki during the course of their stay at Regional Office, Lucknow between 15th to 19th February, 1999. They have stayed in Hotel Clarks Awadh. Sri P.K. Mangala, Divisional Manager (Vigilance), who headed the vigilance team, though cited as prosecution witness, but not produced at all. On the contrary Sri U.P. Singh, Assistant Manager (Quality Control), produced as PW-3, deposed that he was associated with Zonal Team and visited Barabanki in the Staff Car on 16.02.1999 and not on 17.02.1999. In the statement of imputation of charge-sheet (Annexure-II to the charge sheet), the date of visit was claimed as 17.02.1999 as it was the date mentioned in the Joint Analysis Report of samples, analyzed at RO Lab., Lucknow. The Inquiry Officer also found that there was certain sample slips signed by Vigilance Team as also Sri U.P. Singh on 16.02.1999 which corroborated his statement that he visited Barabanki on 16.02.1999 and there was no evidence to show that the team has visited on 17.02.1999. The disciplinary authority is completely silent on this discrepancy also and nothing has been said on this finding recorded by Inquiry Officer.
21. With regard to Joint Analysis Report dated 17th and 18th February, 1999, the Inquiry Officer has noticed that instructions for collection of samples were not followed at all which are bound to affect the result. Then the Inquiry Officer also noticed different version regarding sampling stated by PW-3, Sri U.P. Singh and DW-1, Sri M.K. Dubey, both were of the same rank officers, i.e., Assistant Manager (QC), FCI. On this aspect also the disciplinary authority has said nothing.
22. The Inquiry Officer has also noticed the discrepancy in the statement of PW-2, Sri S.S. Saxena, Assistant Manager (QC) and has observed as under:
"Sri S.S. Saxena, AM (QC)/PW-2 was also questioned on this account during his cross examination on dated 28.04.2000 stated that he too did not check the certificate of stamping of weights and balances during joint analysis of rice sample in R.O. Lab. Lucknow pertaining to ARDC Boroghat page 58 and FSD Deoria."
23. He has also noticed certain facts regarding the alleged lab. testing as under:
"The procedure for determination of dehusked grain is provided in Exb. D-10 a photo copy of QC manual produced through Shri Narain Dayal, AM (QC)/ PW-1 under appendix 4A-13 of this exhibit, following chemicals are used for determination of dehusked grains.
I. Metanil yellow 2. Hydrochloric Acid 3. Methyline blue and 4. Distilled water. Exb. D-5 (4 sheets) which are abstracts of consumable register of Regional lab and produced through PW-3 shows the date wise consumption of above chemicals during the period 98-99. Jt. Analysis of rice samples as per Exb. P-12 and P-7 was carried out in R.O. Lab on 17/18.2.99 and w.e.f. 8.3.99 to 10.3.99. Exb. D-5 is silent about consumption of the above chemicals on these dates. The defence has termed the entries of Exb. D-5 as fake called its cheat and observed that dehusked grain percentage was determined on visual assessment only."
24. The disciplinary authority has completely overlooked even this aspect of the matter and simply relying on the fact that a testing report, petitioner has signed has said that nothing further need be investigated and on that basis petitioner can be held responsible. It went without explaining other discrepancies and abruptly it has recorded the so called dissenting note so as to held petitioner guilty and that has been followed mechanically by appellate and reviewing authority also.
25. True, I am sitting in appeal over the findings recorded by disciplinary authority but when this Court is called upon to consider, whether the findings recorded by disciplinary authority is perverse or, in fact, in the garb of dissenting note and findings, it has completely omitted to consider the specific findings recorded by Inquiry Officer on various aspects and proceeded to record its own observations with respect to documents forming part of charge sheet treating those documents to be a gospel truth, this Court would have to examine whether the findings are perverse, result of misreading or has caused due to omission to consider other relevant evidence on record. It is further to be seen whether disciplinary authority considered those aspects of the mater which have been found by Inquiry Officer in favour of delinquent employee and after considering those aspects it has found that the findings recorded by Inquiry Officer was not correct. If that has been done, it can always record a contrary finding on its own. However, in the garb of dissenting finding, I find it difficult to chew that the disciplinary authority can completely overlook, ignore and omit to consider those aspects found by Inquiry Officer in favour of delinquent employee and without dissenting with those findings and reversing the same, it can proceed to hold delinquent employee, guilty, which is nothing but simply a reiteration of allegations contained in charge sheet and the documents and witnesses relied by it, without discussing those documents and witnesses which are in favour of delinquent employee. In other words before giving findings of reversal, by way of disagreement, the disciplinary authority should first reverse the specific findings recorded by Inquiry Officer in favour of delinquent employee and should record its findings. Since those aspects are completely ignored it would be difficult to hold that the disciplinary authority has recorded a dissenting finding inasmuch as if it has completely ignored those aspects of the matter which are in favour of delinquent employee, it amounts to non-consideration of evidence available on record, which is in favour of delinquent employee and shall vitiate the findings recorded by disciplinary authority. This is what I find in the present case also.
26. The scope of judicial review in departmental inquiry is admittedly limited but where this Court finds that disciplinary authority has committed manifest error by not looking into the entire material on record and it has completely omitted or ignored the evidence on record which is in favour of delinquent employee, it will vitiate its finding for the reason that material evidence stands omitted from consideration and this shall vitiate the order of punishment as also appellate and review order, if any.
27. The scope of judicial review and interference in the matter of disciplinary proceedings has been examined in detail by a Division Bench of this Court in Sarvesh Kumar Sharma Vs. Nuclear Power Corporation of India Ltd. & Anr., 2006 (2) ESC 1153, and after considering a catena of decisions on the subject, this Court has crystallized the aspects which can be examined by the Court and which may justify judicial interference and not otherwise, which are reproduced as under:
"(1) The Tribunal exercising quasi judicial functions neither bound to follow the procedure prescribed for trial of actions in Courts nor bound by the strict rules of evidence.
(2) They may obtain all information material for the points under enquiry and act upon the same provided it is brought to the notice of the party and fair opportunity is afforded to explain.
(3) The judicial enquiry is to determine whether the authority holding enquiry is competent, and whether the procedure prescribed is in accordance with the principle of natural justice.
(4) There should exist some evidence accepted by the competent authority which may reasonably support the contention about the guilt of the officer. Adequacy or reliability of the evidence can not be looked into by the Court.
(5) The departmental authorities are the sole judges of facts and if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the Court.
(6) There is no allergy to hear-se evidence provided it has reasonable nexus and credibility. All materials which are logically probative for a prudent mind are permissible.
(7) The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice.
(8) It is not necessary that the Disciplinary authority should discuss material in detail and contest the conclusions of the Inquiry Office.
(9) The judicial review is extended only when there is no evidence or the conclusion or finding be such as no reasonable person would have ever reached on the basis of the material available."
28. I find that the question considered by this Court is clearly covered by the factor contained in Clause (5) and (9) above justifying interference by this Court with the impugned order.
29. In the result, the writ petition is allowed. The impugned orders dated 28.02.2001, 19.04.2001 and 02.01.2002 are hereby quashed. The petitioner shall be entitled to all consequential benefits. However, this order shall not preclude the disciplinary authority from passing a fresh order in accordance with law and in the light of observations made above.
30. Petitioner shall also entitled to costs, which I quantify to Rs. 25,000/-.
Order Date :-17.04.2015 AK