Om Prakash S/O Vallabhdas Joshi vs Maharashtra State Co-Operative ...
2002 Latest Caselaw 1286 Bom

JUDGMENT

A.P. Shah, J.

1. Rule. Respondents waive service. By consent. Rule is taken up for hearing.

2. The petitioner was appointed as Grader in the respondent. No. 1, Federation. He was promoted as Senior Grader in the year 1986. On 18.8.1994 a charge-sheet was issued to the petitioner containing three charges. The first charge was that the petitioner was responsible for causing loss (in weight) of 4.09 per cent while he was working at Ramchandra Ginning Factory, Babhulgaon. The second charge was that the stones, earth, pieces of iron were found to be mixed in cotton seeds sold to M/s. Bajrang Oil Mills from the factory where the petitioner was working and the last charge was that there was a short fall of 22.5 quintals of cotton seeds in the commodity sold to M/s. Gopal Oil Industries. One Shri Bhendarkar was appointed as an Inquiry Officer who held an enquiry into the charges and submitted his report on 3.2.1996 whereby he exonerated the petitioner of all the charges. The disciplinary authority, instead of taking further action on the report, appointed Shri S.M. Ali as the Inquiry Officer who held de novo enquiry against the petitioner and found the petitioner guilty of all the charges. Pursuant to the report submitted by the Inquiry Officer Shri Ali, the General Manager of the Federation after issuing a show cause notice to the petitioner imposed punishment of compulsory retirement from service.

3. Shri Parsodkar, learned Counsel appearing for the petitioner, raised a number of points before us. We need to mention only one point viz. that the Disciplinary Authority had no authority to appoint Shri S.M. Ali to inquire the charges after the Inquiry Officer had reported in favour of the employee. It was urged before us that such an inquiry is not contemplated by the Service Rules for the employees of the Maharashtra State Cooperative Cotton Growers Marketing Federation Limited. It was contended that Rules did not contemplate successive inquiries, and at any rate even if it contemplated successive inquiries there was no provision for setting aside earlier enquiry without giving any reason whatsoever. Reliance was placed on the decision of the Apex Court in K.R. Deb v. Collector, Central Excise, Shillong .

4. Rule 37 of the Rules provides that no order imposing any of the penalties specified in Clauses (1) to (4) of Rule 35 shall be passed except after the employee is informed in writing of the proposal to take action against him and of the allegations on which if is proposed to be taken and given an opportunity to make any representation he may wish to make and his representation is found unsatisfactory. Rule 38 prescribes a procedure for imposing major penalty. Rule 38 inter alia reads as follows :-

Rule 38. (a) No order imposing on an employee of the Federation any of the penalties specified in Clauses (5) to (8) of Rule 35 shall be passed except after a departmental enquiry held, as far as may be in the manner herein after provided.

(1) ....

(2) The Disciplinary Authority may inquire into the charges itself or if it consider it necessary to do, it may either at the time of communicating the charges to the employees under Sub-rule (1) or at any time thereafter appoint a board of inquiry or inquiry officer for the purpose.

(3) The employee shall, for the purpose of preparing his defence be permitted to inspect and take extract from such official records as he may specify, provided that such permission may be refused, if for reasons to be recorded in writing in the opinion of the Disciplinary Authority such records are not relevant for the purpose of it is against the public interest or the Federation; legitimate interest to allow his access thereto.

(4) On receipt of the written statement of defence or if no such statement is received within the time specified, the Disciplinary Authority or as the case may be the Board of Enquiry or the Inquiry Officer may inquire into such of the charges as are not admitted.

(5) ....

(6) The Inquiry Authority shall, in the course of the inquiry, consider such documentary evident and take such oral evidence as may be relevant or material in regard to the charges. The employee shall be entitled to cross-examine witness examined in support of the charges and to give evidence in person. The person presenting the case in support of the charge shall be entitled to cross-examine the witness examined in his defence. If the Inquiry Authority declines to examine any witness on the ground that the evidence is not relevant or material, it shall record its reasons in writing.

(7) At the conclusion of the Inquiry, the Inquiry Authority shall prepare a report of the Inquiry recording its findings on each of the charges together with reasons therefore.

B.....

C. The Disciplinary Authority shall if it is not the Inquiring Authority consider the record of the inquiry and record its findings on each charge.

D. If the Disciplinary Authority having regard to its findings on the charges, of the opinion that any of the penalties specified in Clauses (5) to (8) of Rule 35, should be imposed, it shall :-

(1) Furnish "if denied by the employee", to the employee a copy of the report of the Inquiring Authority, and where the Disciplinary Authority a statement of its findings together with brief reasons, for disagreement, if any with the findings of the Inquiry Authority, and

(2) give him a notice stating the action proposed to be taken in regard to him and calling upon him to submit within a specified time such representation as he may wish to make against the proposed action.

E. The Disciplinary Authority shall consider the representation, if any made by the employee in response to the notice under Clause (2) above and determine what penalty if any, should be imposed on the employee and pass appropriate orders on the case.

F. ....

5. A bare perusal of that Rule 38 shows that it provides for one enquiry, but it may be possible if in a given case there has been no proper inquiry because some serious defect has crept into the inquiry or some important witnesses were not available at the time of the inquiry or were not examined for some other reason, the Disciplinary Authority may ask the Inquiry Officer to record further evidence. But there is nothing in the rule for completely setting aside previous inquiry on the ground that the report of the Inquiry Officer does not appeal to the Disciplinary Authority. The Disciplinary Authority has enough powers to reconsider the evidence itself and come to its own conclusion under Rule 38. In K.R. Deb v. Collector, Central Excise, Shillong (supra), the Apex Court while considering a similar rule in Central Civil Services (Classification, Control and Appeal) Rules, 1958 held that Rule 15 of the said Rules does not contemplate successive inquiries. If there is some defect in the inquiry conducted by the Inquiry Officer, the Disciplinary Authority can direct the Inquiry Officer to conduct further inquiry but it cannot direct a further inquiry to be conducted by some other officer.

6. In our view, the Rules do not contemplate an action such as taken by the Disciplinary Authority. The impugned order dated 12.4.1999 is quashed and set aside. The respondents are directed to reinstate the petitioner with full back wages. We, however, make it clear that it would be open for Disciplinary Authority to take appropriate action against the petitioner in accordance with the rules. Rule is made absolute accordingly. No order as to costs.