HON'BLE MRS JUSTICE SUREPALLI NANDA
WRIT PETITION No.25655 OF 2015
ORDER:
The petitioners approached this Court seeking a writ of Mandamus to declare the impugned proceedings of the 3rd respondent vide proceedings No. DCP/Rice/Storage Loss/JKPT/2012-13, dated 01.07.2015 as arbitrary, illegal and contrary to law and consequently set aside the same while directing the respondents to continue the petitioner in service as usual.
2. The short grievance of the petitioner is that he joined as Technical Asst. Grade-I in the 2nd respondent organization in the year 2011 and posted in-charge of Buffer Godown, kept in-charge of Guinnies Godwon, Janakamet, Nizambad by the 4th respondent. As per the office order of the 4th respondent dated 21.03.2015 he was shifted to Procurement Godown from the storage godown. His duty started from 21.03.2013 and allowed to continue till 4.6.2013. The 4th respondent issued a Memo dated 10.07.2013 to the petitioner seeking a detailed report as 2 there is a storage loss of 53 M.Ts in Raw Rice at Buffer godown, Jankampet during June, 2013. He submitted a detailed explanation on 22.07.2013. The 3rd respondent suspended him from service vide proceedings No. DCP/Rice/Stg.Loss/JKPT/2012-13, dated 21.09.2013 attributing responsibility on the petitioner and caused the storage loss as 79.371 M.Ts and cost of the same is estimated the double cost to Rs.27,14,488/-. On 18.02.2014 the 4th respondent was appointed as Enquiry Officer, he in turn submitted report dt 10.03.2014 to the 3rd respondent. Basing on the said report of the 4th respondent, the respondent issued the impugned proceedings No.DCP/Rice/Storage Loss/JKPT/2012-13 dated 01.07.2015 referring to the letter of the 2nd respondent dated 26.03.2015 fixing the petitioner liable to pay an amount of Rs.27,14,448/- and ordered for recover of the same at the rate of Rs.14,000/- per month up to 31.08.2031 i.e. till the date of his retirement and the suspension period is treated as not on duty along with stoppage of 3 increments with cumulative effect while 3 reinstating the petitioner into service. Hence, prayed to allow the writ petition as prayed for.
3. Counter affidavit has been filed by the 4th respondent stating that the petitioner was in-charge of Buffer Storage Godown, Janakampet from 14.12.2012 to 03.07.2013. There was a shortage of raw rice at Buffer Godwon, abnormal storage loss of 53.128MTs. The petitioner stated in his explanation that he made corrections in the value registers as 534 and 532 bags for each ACK. The petitioner himself stated that C. Mohan Ganga Ram and Venkatesh, outsourcing employees corrected the records which clearly establishes that the petitioner managed to tally the storage loss 53.128 instead of 79.371 mts. The petitioner misappropriated the legitimate revenue of the corporation and monthly recovery @ Rs/14,000/- per month w.e.f. July, 2015. The petitioner categorically stated that he has no record in moistures content per centage and no shortage has been recorded and there is no relevant for receipt and prayed to dismiss the writ petition with costs. 4
4. Heard learned counsel for the petitioner and learned counsel for the respondents.
5. Perused the record.
6. The petitioner in his affidavit at Para (iv) urged that the Enquiry Officer, who is the 4th respondent has not at all taken the explanation submitted by the petitioner into consideration while submitting a report to the 3rd respondent which was not served on the petitioner and that in the absence of furnishing of enquiry report to the delinquent officer, the punishment cannot be awarded and any such punishment cannot stand to legal scrutiny. This Court opines that the primary contention of the petitioner regarding the failure to furnish enquiry report is against the dictum laid down by the Constitution Bench judgment of the Apex Court in Managing Director, ECIL V B.Karunakar1. In the said judgment, it is observed as follows:
"20. The findings or recommended punishment by the enquiry officer are likely to affect the mind of the disciplinary 1 1993(4) SCC 727 5 authority in his concluding the guilt or penalty to be imposed.
The delinquent is, therefore, entitled to meet the reasoning, controvert the conclusions reached by the enquiry officer or is entitled to explain the effect of the evidence recorded. Unless the copy of the report is supplied to him, he would be in dark to know the findings, the reasons in support thereof or nature of the recommendation on penalty. He would point out all the factual or legal errors committed by the enquiry officer. He may also persuade the disciplinary authority that the finding is based on no evidence or the relevant material evidence was not considered or overlooked by the enquiry officer in coming to the conclusions, with a view to persuade the disciplinary authority to disagree with the enquiry officer and to consider his innocence of the charge, or even that the guilt as to the misconduct has not been established on the evidence on records or disabuse the initial impression formed in the minds of the disciplinary authority on consideration of the enquiry report. Even if the disciplinary authority comes to the conclusion that charge or charges is/are proved, the case may not warrant imposition of any, penalty. He may plead mitigating circumstances to impose no punishment or a lesser punishment. For this purpose the delinquent needs reasonable opportunity or fair play in action. The supply of the copy of the report is neither an empty formality, nor a ritual, but aims to digress the direction of the disciplinary authority from his derivative conclusions from the report to the palliative path of fair consideration. The denial of the supply of the copy, therefore, causes to the delinquent a grave prejudice and avoidable injustice which cannot be cured or mitigated in appeal or at a challenge under Art. 226 of the Constitution or S. 19 of the Tribunal Act or other 6 relevant provisions. Ex post facto opportunity does not efface the past impression formed by the disciplinary authority against the delinquent, however, professedly to be fair to the delinquent. The lurking suspicion always lingers in the mind of the delinquent that the disciplinary authority was not objective and he was treated unfairly. To alleviate such an impression and to prevent injustice or miscarriage of justice at the threshold, the disciplinary authority should supply the copy of the report, consider objectively the records, the evidence, the report and the explanation offered by the delinquent and make up his mind on proof of the charge or the nature of the penalty. The supply of the copy of the report is thus, a sine qua non for a valid, fair, just and proper procedure to defend the delinquent himself effectively and efficaciously. The denial thereof is offending not only Art. 311(2) but also violates Arts. 14 and 21 of the Constitution.
7. In a judgment in Jayachandran V v. State of Kerala2 a Division Bench of High Court of Kerala at Ernakulam in its judgment, dated 16.06.2022 held as follows:
"The right to receive the report is considered as the essential part of reasonable opportunity to be extended to the person affected by the report and a refusal to furnish the report amounts to denial of the right to defend himself and to prove his innocence in the disciplinary proceedings. Even if such right is not explicitly stated in the regulations or statue, that right being a fundamental and essential part of the natural injustice, must be read into every regulation or rules. There is nothing in the rules aforesaid which excludes the operation of the principle of natural 2 2022 SCC On line Kerala 3086 7 justice entitling the delinquent to be served with a copy of the enquiry report before accepting the report or proposing a punishment. It is trite that the principles of natural justice must be read into the unoccupied interstices of the statue/rules or regulations unless there is a clear mandate to the contrary."
8. Learned counsel for the respondents fairly submits to the Court that the perusal of the original record does not evidence the fact of furnishing of the copy of the enquiry report to the petitioner.
9. Under these circumstances, this Court has no option except to set aside the impugned order dated 01.07.2015 of the 3rd respondent by allowing the present writ petition. This Court further opines that the enquiry proceedings will have to start afresh from the stage of drawing up of the enquiry report and by giving a copy of the said report to the petitioner to offer his explanation on the findings in the enquiry report and as to why the enquiry report cannot be accepted. The petitioner should also be given an opportunity to show cause against the proposed punishment. The entire proceedings shall be in compliance to principles of natural justice of affording 8 reasonable opportunity to the petitioner and by serving due notice upon the petitioner. The proceedings will commence as aforesaid and will be proceeded on the basis of the rules, keeping in mind the law laid down by the Apex Court in B.Karuna Kar's case referred 1st supra. The proceedings as directed above will be completed within a period of six months from the date of receipt of a copy of this order.
10. In the above circumstances, the writ petition is allowed with the above directions. However, there shall be no order as to costs.
Miscellaneous petitions, if any, pending in this writ petition, shall stand closed.
_________________________________ MRS JUSTICE SUREPALLI NANDA 13th September, 2022 skj 9 10 HONOURABLE MRS. JUSTICE SUREPALLI NANDA WRIT PETITION No.25655 OF 2015 13th September, 2022 skj