Calcutta High Court (Appellete Side)
Marine Products Export ... vs Balaram Basak & Ors on 21 March, 2022
1
IN THE HIGH COURT AT CALCUTTA
(Civil Appellate Jurisdiction)
APPELLATE SIDE
Present:
The Hon'ble Justice Subrata Talukdar
and
The Hon'ble Justice Krishna Rao
FMA 1087 of 2009
with
IA No. CAN 2 of 2010
(Old No. CAN 6893 of 2010)
Marine Products Export Development Authority (MPEDA) & Anr.
Versus
Balaram Basak & Ors.
For the Appellants : Mr. Anirban Roy
Mr. Soumabho Ghosh
Mr. Rishov Dutt
Ms. Tiana Bhattacharyya
.....Advocates
For the Respondent No. 1 : Mr. Soumya Majumder
Mr. Victor Chatterjee
Mr. Barnamoy Basak
.....Advocates
Heard on : 20.12.2021
Judgment on : 21.03.2022
Krishna Rao, J.: The appellants have filed the instant appeal against the
judgment passed by Hon'ble Single Judge in W.P. No. 6850 (W) of 2007
(Balaram Basak Vs. Union of India & Others) dated 09.04.2009.
At the very outset the parties were informed by this Court that the
appeal, which appears before this Bench holding the regular determination
pertaining to Service (Group VI) appeals, challenges the Judgment and
Order of a Hon'ble Single Judge (S.P. Talukdar, J.), who retired in 2010 and,
is related to one of us (Subrata Talukdar, J.).
The parties, upon consenting to the appeal being taken up before this
Regular Bench, the matter, being an old appeal of 2009, was taken up for
final hearing by this Bench.
Now turning to the merits, the respondent/writ petitioner was initially
appointed as Assistant Director in the year 1981 and subsequently he was
promoted to the post of Deputy Director in the year 1987 in the office of the
Marine Products Export Development Authority (hereinafter referred to as
MPEDA).
On 13.05.1994 the respondent/writ petitioner was sent on deputation
to Orissa Shrimp Seed Production and Research Centre (hereinafter referred
to as OSSPARC) as Project Director and the respondent/writ petitioner was
with the said authority from 13.05.1994 to 28.09.1996.
After repatriation of the petitioner to his parent department on
completion of his deputation period at OSSPARC, on 20.04.1998 the
Director, Chief Vigilance Officer, MPEDA had issued a Memorandum to the
respondent/writ petitioner on the allegation that when the respondent was
posted at OSSPARC had incurred heavy loss on import of Artemia Cysts
during the period of 1995-1996 & 1996-1997 due to bulk purchase of poor
quality Artemia Cysts. The memorandum dated 28.04.1998 reads as
follows:
"Shri B. Basak, Deputy Director, TCA Vallarpadom, was on deputation
to OSSPARK, Gopalpur-on-sea, Orissa, at Project Director during the
period from 13.05.1994 to 28.09.1996.
It has been bought to notice that the OSSPARC had incurred a heavy
loss on import of Atermia Cysts during the year 1995-96 and 1996-97
due to the bulk purchase of poor quality Cysts and Shri B. Basak, the
then Project Director was absolute responsible for the loss incurred by
OSSPARC on the import of Artemia Cysts.
Shri B. Basak, who was than the Project Director of the OSSPARC
during the above period and who had the absolute power and
authority to place orders for purchase of imported cysts responsible
for such a huge loss to the OSSPARC due to the negligence in duties
as Project Director, OSSPARC Shri Basak failed.
(i) to assess the requirement of Cysts;
(ii) to purchase the right quality of Cysts;
(iii) to check the quality of Cysts on its arrival
(iv) to Dispose of the Cysts before the expiry of the shelf life
period; and
(v) to get compensation from the suppliers
OSSPARC had incurred a total loss of Rs. 30 lakhs on the laps of
Artemia Cysts due to the negligence and failure of Shri B. Basak in
executing his duties. Shri Basak is therefore responsible to the loss of
Rs. 30 lakhs for OSSPARC.
Shri Basak is directed to show cause why disciplinary action should
not be taken against him for his failure in the discharge of one of the
most important duties and responsibilities connected with the
management of the OSSPARC and consequent to the heavy loss to the
Society. His explanation should reach the undersigned within a
fortnight from the date of receipt of this memorandum."
On receipt of the memorandum dated 20.04.1998 the respondent/
writ petitioner had requested the appellants MPDEA for supply of
documents for submission of appropriate reply to the said memorandum but
when the appellants could not supply the documents to the respondent, the
respondent had filed a writ petition before the Honble Kerala High Court and
pursuant to the order passed by the Hon'ble Kerala High Court dated
06.07.1999, the appellants have provided documents to the respondent and
on receipt of the documents, the respondent had submitted his detailed
reply to the appellant to the Memorandum dt. 20.04.1998.
On receipt of reply submitted by the respondent, the appellants have
not satisfied with the same and accordingly on 21.08.2000 a Memorandum
along with Article of Charges have been served upon the respondent for
initiation of inquiry under Rule 14 of the CCS (CCA) Rules, 1965.
In the said charge-sheet dated 21.08.2000 altogether nine (9) charges
were framed and it was alleged that due to the negligence on the part of the
respondent, the respondent would be responsible to compensate the loss of
Rs. 18,44,593/- which the appellants claim to represent the value of the
Artemia Cysts written off as scrap.
On receipt of the Memorandum of Article of Charges, the respondent
has submitted his detailed reply on 05.10.2000 but the appellants being the
Disciplinary Authority without considering the reply submitted by the
respondent has appointed Inquiring Authority and Presenting Officer to
proceed with the inquiry initiated against the respondent.
On completion of inquiry, the Inquiring Authority had submitted
enquiry report to the Disciplinary Authority wherein the Inquiring Authority
exonerated the respondent from all of the charges except charge no. 2 & 6.
Charge nos. 2 & 6 reads follows:
"Chare No. 2:
i) The project Director purchased 397.7 kg of Artemia at a
cost of Rs. 2.59 lacs in December 1994. The balance
stock of 806.3 kg was ordered in April, 1995 and
purchased in June, 1995 at a cost of Rs. 22.81 lacs
without reassessment of the requirement of this quantity.
ii) The quantity to be purchased was not reduced
considering that hardly few months remained of the
period for which the purchase was being affected.
Charge No. 6.
This instruction to the Bank for opening the L/C stipulated that
payments under the L/C should be effected to Argent on
production of a test Certificate, current dated, to be issued by
Argent supplying hatching rate etc. Argent issued a general
certificate without specifying the hatch out percentage. The
P.D. failed to get a Certificate from Argent specifying the hatch
out percentage. The P.D. failed to get a Certificate from Argent
specifying the hatch out rate, and also failed to take up the
matter with the Bank."
On receipt of the inquiry report submitted by the Inquiring Authority
the Disciplinary Authority had disagreed with the said report and
accordingly the Disciplinary Authority had communicated disagreement
notice to the respondent. On receipt of the said disagreement notice, the
respondent had submitted his detailed reply to the said disagreement notice
to the Disciplinary Authority.
After receipt of the reply of the respondent against the disagreement
notice, the Disciplinary Authority had issued an order no.166 dated
05.05.2006 wherein the Disciplinary Authority had imposed the following
penalty:
"In view of the facts and circumstances as mentioned above, I hereby,
impose on Shri Balaram Basak, the Charged Officer, the penalty of
reduction in rank from the current post of Dy. Director held by him in
the grade of S-19 in time scale. Rs. 10,000-325-15200 to the lower
post of Assistant Director in grade of S-15 in time scale. Rs. 8000-
275-13500 with effect from 01.07.2006 till the date of retirement. His
pay will be fixed in the reduced scale of pay of Rs. 8000-275-13500
with effect from 01.07.2008 and he will earn normal increments in the
scale of pay of Rs. 8000-275-13500 in the month of July every year,
As regards, the pecuniary loss of Rs. 18,44,593/- caused by
mismanagement, it is proved that Shri Basak is individually and
collectively responsible for the same. However separate orders for
recovery of the amount will be issued later.
This order shall come into force with effect from 01.07.2006."
Being aggrieved and dissatisfied with the order of penalty, the
respondent had preferred statutory appeal before the Appellate Authority.
The Appellate Authority had rejected the appeal preferred by respondent on
26.03.2007 and upheld the order passed by the Disciplinary Authority.
Being aggrieved and dissatisfied with the order of the Disciplinary
Authority as well as the Appellate Authority, the respondent had preferred a
writ petition before the Hon'ble Single Judge being W.P. No. 6850 (W) of
2007 (Balaram Basak Vs. Union of India & Others). The writ petition filed
by the respondent was duly contested by the appellants and accordingly on
09.04.2009, the Hon'ble Single Judge has disposed of the writ petition by
passing the following order which is impugned in the instant appeal:
"In view of the discussion already made, I do not think it
necessary to deal with the nature and quantum of punishment since
it has already been found that the findings of guilt, as had been made
by the disciplinary authority and thereafter, confirmed by the
appellate authority, are not based on concrete materials but relate to
their own perception and belief. In my opinion, what can be said to
have been established in disciplinary proceeding is that he was guilty
of error of judgment. In absence of any ill-motive, this could not be
taken as misconduct.
As discussed earlier, the manner which the disciplinary
authority has dealt with the matter is not just and proper.
Thus, the present writ application being W.P. No. 6850 (W) of
2007 succeeds and be allowed. The impugned order being order dated
5th May, 2006 passed by the Disciplinary Authority and the order
dated 26th March, 2007 passed by the Appellate Authority are hereby
quashed. The respondent authorities are directed not to give effect to
the said orders being Annexure- 'P-7' & 'P-8' respectively."
The appellants contend that the Hon'ble Single Judge has
wrongly come to the conclusion that the respondent was not guilty of
misconduct. The respondent submit that to establish misconduct, the
authorities during the enquiry have produced the documents which was
admitted by the respondent to prove that the respondent has committed
gross negligence while performing his duty, which the appellant firm has
suffered severe financial loss.
The Counsel for the appellant further contended that the Ld. Single
Judge while passing judgment has wrongly appreciated that in the
disciplinary proceeding, it is for the Disciplinary Authority to appreciate
materials on record in different perspective.
The Counsel for the appellant had further pointed out that the Ld.
Single Judge while passing order held that while agreeing with the
Disciplinary Authority may not be under obligation to analyse every aspect
of the matter and deal with every minor details but the authority while
passing the same, must show that there had been proper application of
mind. The Counsel for the appellant had further submitted that the Ld.
Single Judge has wrongly come to the conclusion that the order passed by
the Appellate Authority is without proper application of mind. The Counsel
for the appellant further contended that judicial review cannot extend the
examination of the correctness of the charges as it is not an appeal. The
Counsel for the appellant further submitted that appraisal of evidence is not
permissible while exercising power under Article 226, Constitution of India.
The Counsel for the appellant has further submitted that the Ld.
Single Judge has wrongly come to the conclusion that what can be said to
have been establish in the disciplinary proceeding is that he was guilty of
error of judgment. It is further submitted that the Hon'ble Single Judge has
wrongly held that any ill motive cannot be taken as guilty of misconduct.
The Counsel for the appellant further submitted that the Hon'ble Single
Judge has wrongly come to the conclusion to establish misconduct against
the respondent something more is required to be added and mere
negligence, failure to appreciate the matter in its proper perspective or any
procedural lapses may not amount to misconduct.
The Counsel for the appellant further submitted that it is evident from
the order dated 26.03.2007 passed by the Appellate Authority, sufficient
opportunity was provided to the respondents and after proper consideration
of the facts and circumstances of the case, the respondent was held guilty of
failure to discharge his duties as Project Director of OSSPARC.
The appellants further submitted that the role of the respondent as
Project Director was from 13.05.1994 to 28.09.1996 involved the duties
being primarily responsible for achieving the targeted production of shrimp
seeds and marketing of seeds and all the managerial aspects involving
smooth operation of hatchery including day to day and operations of
hatchery and implementation of project tasks. The appellants further
submitted that it is categorically evident that the respondent showed gross
negligence/dereliction of duties during his tenure as Project Director on
deputation at OSSPARC and as such a disciplinary proceeding was initiated
against the respondent.
The appellants further contended that the respondent being the
Project Director was officer responsible for taking the decision for quantity of
Artemia Cysts which ought to have been purchased from;
a) Sanfrancisco Bay, USA
b) Macau, Brazil.
c) Great Salt Lake USA
d) Tanggu, bohai Bay, China
e) Chaplin Lake, Canada
f) Mithapur, Gujrat, India.
The appellants further submitted that the contention of the
respondent that the Artemia cysts can only be purchased from USA is
incorrect, erroneous and baseless. It is further submitted that two other
important facts involved in this case are the quantity of Artemia Cysts being
purchased by the respondent as Project Director OSSPARC and the life span
of such cysts. The appellants further submitted that the respondent failed
and neglected to make a proper assessment of Artemia Cysts required for
the winter 1994-1995 and summer of 1995-1996.
The appellants further submitted that the assessment required to
produce 80 million seeds cannot be put in a Straight Jacket Formula, as
Project Director should have taken the decision to place orders of Artemia
Cysts only after due appreciation of the relevant record and material facts.
It is further submitted that the respondent being Project Director was
responsible for sanction, purchase and for performance of Artemia Cysts at
OSSPARC and the same is evident that the respondent while sanctioning
purchase of Artemia Cysts for the relevant period failed and neglected the
proper assessment of the quality and quantity of Artemia Cysts.
The appellant further contended that for proper consideration of the
opening stock, the likely consumption, quality of Artemia Cysts being
ordered, the hatch out percentage and the expiry date of Cysts are involved
when the respondent have placed an order to purchase the same.
The appellants further submitted that the respondent being the
Project Director was duty bound to assess the requirement of cysts keeping
in mind the past averages of 1993 and 1994. The consistent practice of the
Project Director at OSSPARC has been to place reliance ought to give more
weight to the date of the previous year in producing seeds.
The appellants further submitted that it is erroneous to rely solely and
exclusively on the basis of an alleged scientific stipulation in deciding the
quantity of Artemia Cysts required for producing 80 million seeds and not
consider the practical ground realities.
The appellants further submitted that during the course of enquiry
the respondent was unable to produce any document to support the so
called scientific stipulation that approximately 15-18 kgs of Artemia Cysts is
required to produce 1 million seeds as stated by the respondents.
The appellants further submitted that past averages would evidenced
that the alleged scientific stipulation is wholly inaccurate and that in the
past average of 702 Kgs. of cysts were required to produce 80 million seeds.
It is further submitted that for the year 1993-1994, total production of the
seeds were about 70 million and 604 kgs. of Artmia cysts were consumed
and in the year 1994-1995 for producing 82 million seeds, 797 kgs. of cysts
were consumed.
The appellants further submitted that from the above it is crystal clear
that the past average consumption of Artemia Cysts was 08-10 kgs. of
production of 1 million seeds in OSSPARC and thus the scientific stipulation
as calculated by the respondent was wholly erroneous.
The Counsel for the appellant relied upon judgments reported in AIR
1997 SC 1030 (20 & 21), AIR 1999 SC 194 (16), 2011 (10) SCC 249 (13) and
2010 (3) SCC 732 (36, 37 & 41) and have submitted that the Hon'ble Single
Judge without considering the fact that the disciplinary authority as well as
the appellate authority after considering the documents and the evidence
available on record have passed an appropriate order but the Hon'ble Single
Judge by re-appreciating the evidence had passed the impugned judgment
which is liable to be set aside.
Per contra, the Counsel for the respondent no. 1/ writ petitioner
submitted that the writ petitioner was on deputation in Orissa Shrimp Seed
Production and Research Centre with effect from 13.05.1994 to 28.09.1996
while he was holding lien to the post of Deputy Director in Marine Products
Export Development Authority. During his tenure as Project Director of
OSSPARC, a technical expert of the organization had asked the writ
petitioner on 09.02.1995 to take steps to ensure adequate stocks due to
possible scarcity of Artemia Cysts in the market and accordingly, the writ
petitioner had completed the said work.
On 24.04.1998 a show cause notice was issued to the writ petitioner
alleging that the OSSPARC had incurred loss towards import of Artemia
Cysts due to purchase of bulk of poor quality Cysts, failure to assess the
requirement, failure to check the quality of Cysts before expiry and failure to
get compensation from the suppliers. Though the writ petitioner had
submitted his reply but without being satisfied with the same the Chairman
and the Disciplinary Authority issued a charge-sheet against the writ
petitioner on the allegation as mentioned above.
It is further submitted that the charges contained in the charge-sheet
pertain to;
(a) Improper assessment of requirement,
(b) not following purchase procedure and
(c) failure to make a claim from suppliers.
The writ petitioner in reply to the said charge-sheet had set up the
following defence:
(a) Purchase was made on the basis of a report prepared by the
Hatchery Manager, purchase assistant and accounts manager were
aware of the likely consumption.
(b) Delay in delivery of purchased cysts from abroad was due to
Custom clearance.
(c) The season for production and sales being January to September,
there could be no scope for re-assessment.
(d) The entire purchased cysts have been consumed but for the heavy
cyclone, viral disease of shrimps and massive cancellation of
bookings by the customers. The subsequent unseen factors
compelled production curtailment from 80 million to 30 million.
The target was fixed by the Governing Council.
(e) The proposal was approved by the Governing Council on the basis
of the production achieved in previous year, and on the
recommendation of personnel of OSSPARC who were in
employment, even before the writ petitioner had been placed on
deputation in OSSPARC.
(f) Purchase was made on the basis of scientific evaluation or
evaluation by Experts.
(g) Purchase was made on the basis of quotation from five suppliers,
of which only two respondent; scarcity of cysts arose due to natural
calamity, the other supplier did not have adequate quantity of
cysts.
(h) Quality parameters of supplier were analyzed in an exhibition held
in Chennai in January 1995.
(i) The supplier was an old one and no bad record with OSSPARC and
the particular hatching percentage was known for the particular
product.
(j) Production being achieved but for the unforeseen events, like
natural disaster and disease of the seeds, the production target
would have been achieved and assessment would have matched
purchase much before the expiry date of cysts.
(k) Almost 90 % of bookings were cancelled by the customers due to
natural disaster.
(l) After the writ petitioner left OSSPARC, the supplier agreed to
replace 500 kgs. of cysts as complementary.
(m) No scrap was mentioned in the audit report of the OSSPARC.
It is further submitted that on completion of the evidence the
Inquiring Authority submitted report holding that charge nos. 2 and 6 were
only proved while the other charges were not proved.
The Counsel for the writ petitioner further submitted that even charge
nos. 2 and 6 is not proved since it was on record that technical personnel
working for several years never failed to calculate the actual consumption in
line with production for previous year.
It is further submitted that on analysis of inquiry report, it reveals
that the missing link which the Purchase Officer has not taken into account
the balance stock available in the stores the other brands of Artemia Cysts
is really a question. Probably when he received the indent from the
concerned section the Indenting Officer might have indicated these two
brands only, which is still a matter of fact to be ascertained.
It is further submitted that on the basis of the indent, purchase order
was placed by the writ petitioner and it is reasonably not expected that the
Chief Executive Officer would physically inspect the balance stock on
weighment.
The Counsel for the writ petitioner further submitted that as regard
charge no. 6, Inquiring Authority held that the test certificate of Letter of
Credit was of general nature and there was no lapse in getting certificate
showing the hatching rate. The Counsel for the writ petitioner further
submitted that the finding of the Inquiring Authority is contrary to the
evidence collected, since it has been admitted by P.W-2 that the catalogues
contained all the technical details. It is further submitted that P.W-2 in his
evidence admitted that the procedure for obtaining certificate from the
supplier in the case of Letters of Credit transaction had been followed.
The Ld. Counsel for the petitioner further submitted that
disagreement of the disciplinary authority to the finding of the Inquiring
Authority was principally on the basis that the Inquiring Authority had
found other officers to be equally responsible and the writ petitioner was not
fully responsible. It is further submitted that the reply submitted by the
petitioner to the disagreement was not considered by the disciplinary
authority which had imposed the order of penalty against the writ petitioner.
The Counsel for the writ petitioner submitted that the order of the
appellate authority is perverse on the following points:-
(a) Assessment as per previous consumption rate was 9-10 kg/million
and not 15-18 per million. But the said finding is contrary to the
evidence of P.W-5 wherein he as admitted that actual consumption
of artemia for 1 million of production was 12/15 kg.
(b) The appellate authority has placed the reliance on Circular 1999 as
said circular is only having prospective effect and could not have
controlled or regulated a purchase procedure of 1995.
(c) Earlier incumbent had followed the practice of inviting quotations
and the system and practice of purchase in the instant case, in the
teeth of non availability of artemia cysts in the world market had
been explained through the mouth of the witnesses and the same
was duly discussed by the Inquiring Authority.
(d) As regard the Argent Chemicals was reputed company/supplier,
the same is admitted by the P.W-4 that the supplier was a world
renowned company and the Argent Chemical was an old supplier of
OSSPARC.
(e) As regard details/catalogues for hatched out rate and expiry date is
contrary to the evidence of P.W-5 which shows that the product
catalogue was collected by the technical staff.
(f) The Counsel for the writ petitioner further submitted that this is a
case where the findings of the disciplinary authority are wholly
contrary to the evidence collected on behalf of the appellant. It is
further submitted that this is not a case of inviting the Court to sit
in appeal over the findings of the disciplinary authority.
(g) The Counsel for the writ petitioner relied upon the judgments
reported in 2006 (4) SCC 713, 2007 (1) SCC 437 and 2021 (2) SCC
612 and submitted that judicial review and interference in inquiry
is well laid down.
Considered the submissions of both the parties, documents available
on record and the judgment relied by the parties. Admittedly, it is settled
law that the Writ Court under Article 226 of the Constitution of India does
not permit examination of correctness of the charges wherein there is a
concurrent finding of both the authorities i.e. Disciplinary Authority as well
as the Appellate Authority. It is also settled law that the Writ Court can
certainly intervene when the findings are not based on legally permissible
substantive evidence.
In this case, the Inquiry Officer had submitted inquiry report and held
that out of nine charges only two charges namely charge no. 2 and charge
no. 3 is proved and other charges are not proved. On receipt of inquiry
report, the Disciplinary Authority had disagreed with the findings of the
inquiry report and had passed an order of punishment holding that all the
charges have been proved against the respondent. The Appellate Authority
had upheld the order of the Disciplinary Authority. Being aggrieved with the
order passed by the Disciplinary Authority as well as the Appellate
Authority, the respondents had preferred writ application and the Hon'ble
Single Judge had set aside the impugned order dt. 05.05.2006 passed by
the Disciplinary Authority and the order dt. 26.03.2007 passed by the
Appellate Authority.
Now the primary question before this Court is to ascertain whether
the judgment passed by the Hon'ble Single Judge dt. 09.04.2009 is
sustainable in law.
The Ld. Single Judge while passing judgment held that:
"Thus, on careful scrutiny of the materials available on record,
it can be found that there was practically no material worth
mentioning so as to attribute any ill-motive or malafide intention in
the conduct of the writ petitioner. In that event, the charges largely
entered around the allegation that there had been error of judgment.
If so, it cannot be said that the authorities were justified in holding
the writ petitioner guilty of misconduct. It could very well be that
there had been gross negligence or rashness on the part of the writ
petitioner. But in order to establish misconduct, something more
than that is required to the added to that. Mere negligence, failure to
appreciate the matter in its proper perspective or any procedural lapse
may not amount to misconduct."
This Court is of the view that to decide the issue that the evidence on
record did justify the authorities to come to a finding of guilt, each and every
charges and the corresponding evidence is to be looked into.
Charge 1 is as follows:-
"Shri B. Basak, Dy. Director, MPEDA was functioning as Project
Director of OSSPARC, Gopalpur-on-Sea in Orissa on deputation
during the period from 13.05.1994 to 28.09.996. In November 1994,
he approved a proposal (D-1) for purchase of 1200 kg of Artemia (Live
Shrimp Feed) from abroad without a proper assessment of the
requirement i.e. without considering the opening stock, the likely
consumption, etc."
The Inquiring Authority after the enquiry, while submitting report held
that the Charge No. 1 is not proved. The Disciplinary Authority after the
disagreement with the finding of the Inquiry Officer has held that the final
conclusion of the Inquiry Officer stating that the charge is not proved
because of the Charged Officer was new to the job is not at all correct one.
The Disciplinary Authority while issuing disagreement notice failed to
consider the evidence available on record. As per the evidence of R.K.
Mishra who was the Hatchery Manager and was examined as P.W-4
submitted that 12-13 kg Artemia Cysts is used to be required for production
of one million PL-20 and also clarified technically that consumption of
Artemia Cysts during 93-94 and 94-95 was 8.77 kg and 9.72 kg per million
production and the Artemia Cysts imported (800 kgs.) would have been
consumed if production had reached 70 million during 95-96 as projected
by Shri R.K. Mishra. In the evidence he has further admitted that the
booking/demand of shrimp seeds during 94-95 (winter) and (95-96) summer
were more than 90 million and he had projected the production schedule of
shrimp seeds of 70 million during 95-96 summer i.e. from April to
September, 1995.
During cross examination of P.W-4 he has admitted that requisition of
stock for production of 80 million seeds during winter 94-95 and summer
95-96 is projected 1200 kg of Artemia taking care of 162 kg.
P.W.2 Shri. A.K. Patnaik has also admitted that for purchase of 1200
kg of Artemia on 22.09.1994 total stock of Artemia Cysts was only 162 kg.
The disciplinary authority without considering the said evidence had
come to the conclusion that charge I against the respondent is proved which
is not in consonance with the evidence available on record.
Charge 2 reads as follows:-
"In pursuance of the above decision, around 397.704 kg at cost
of Rs. 2.59 lakh were purchased in December 1994. Although the
1200 kg was indicated as the quantity required for the "winter 94-95
and summer 95-96" production of shrimp seeds (i.e. till, say, August,
1995), (D-3), orders were placed for the balance 806.304 kg in April
1995 and actual purchase (of 806 kg) effected in June 1995 at a cost
of Rs. 22.81 lakh. No reassessment of the requirement was done
before purchasing this 806 kg. The quantity to be purchased was also
not reduced considering the fact that hardly few months remained of
the period for which the purchase was being effected. Shri B. Basak,
as the officer who took the decision was responsible for this".
The Inquiring Authority while submitting inquiry report had held that
the charge 2 is proved against the respondent but the said fact is also not in
consonance with the evidence. The Inquiring Authority has not considered
the evidence of P.W-5, M.M. Rao wherein the said witness has stated that
the production of the previous year i.e. 94-95 was more than 80 million and
actual consumption of artemia for one million of production is 12 to 15 kg.
per million. In the earlier occasion MPEDA had purchased artemia of Argent
Brand for which there was no complaint and it had given good result. The
P.W-5 further stated that actual dispatch of the artemia cysts by Argent
Chemicals, USA is 02.05.1995. The said facts were neither considered by
the Inquiring Authority nor the Disciplinary Authority or the Appellate
Authority and have come to the conclusion that charge 2 is proved against
the respondent.
Charge 3 reads as follows:-
"For making such a large purchase (totalling Rs. 22.81 lakh),
Shri Basak did not follow the procedures for purchase such as
ascertaining the names of and addressing all the important suppliers,
specially including the quality parameters in the letters inviting offers,
fixing a time limit for receipt of quotations, analysing the varlous
offers with reference to the quality parameters, etc".
The Inquiring Authority after the inquiry had submitted that charge 3
is not proved but the Disciplinary Authority had disagreed with the findings
of the Inquiring Authority and held that the conclusion of the Inquiring
Authority is not correct. The Inquiring Authority while submitting the
inquiry report had considered the evidence and the documents available on
record and come to the finding that charge 3 is not proved. As per the
evidence of P.W-2 he has submitted that for both hatcheries consumables
and office stationary based on the requirements of different units of stores.
The store clerk normally prepares a purchase requisition (after considering
the present stock position) and submitted to the office through the Hatchery
Manager based on that Hatchery Officer put up the file for inviting quotation
and ultimately once approved by the Project Director action is initiated for
calling quotation. In the evidence it is further stated by the P.W-2 that it
has never been a practice in OSSPARC to call for sample from overseas
suppliers, test them to verify their efficiency and place order accordingly, he
further stated that MPEDA normally invited quotation from reputed
suppliers and ask the quotations along with hatching efficiency for
processing the quotation.
The Disciplinary Authority as well as the Appellate Authority has not
considered the evidence of P.W-2 and wrongly come to the conclusion that
charge no. 3 is proved.
Charge no. 4 reads as follows:-
"In fact, it is seen that on 2.11.1994 offers were called for from
two suppliers and after receiving those offers further offers were called
for from three more suppliers. Later, on 30.3.1995, more offers were
called for from different suppliers. Finally, the order was placed on
M/s. Argent Chemical Laboratories arbitrarily without considering all
the previous quotations received. Shri Basak being the officer who
took these decisions is responsible for this."
After considering the evidence from the materials on record, the
Inquiring Authority held that charge no. 4 is not proved.
In the disagreement notice, the Disciplinary Authority held that the
findings of the Inquiring Authority are liable to be rejected. The Disciplinary
Authority failed to consider that P.W-2, Shri A.K. Patnaik during his
evidence stated that documents as 13 and as 14 relates to the inviting
quotation from M/s. Novalak Inc, the Producer of Bay Select Artemia Cysts
for San Francisco Bay and M/s. Bonneville Artemia International, the
producer of "Bonneville Brand of Artemia Cysts". These two quotations were
invited based on specific requirement from technical unit. As M/s.
Bonneville Artemia International, informed that the hatching efficiency was
below 55 % which was not acceptable to Hatchery Manager, quotation was
invited from the Sole Indian Agent of Prime Artemia (M/s. Atherton). As per
record only two producers and supplier of Artemia in USA responded out of
which M/s. Argent Chemical Laboratories, USA, who possessed the ready
stock of 800 kg of Artemia quoted the lowest rate. The said fact was not
considered by the Disciplinary Authority as well as the Inquiring Authority.
The Disciplinary Authority without considering the evidence of P.W-5,
M.M. Rao. During his evidence he has submitted that:
"Purchase requisition prepared by Stores Clerk and
recommended by Hatchery Manager is forwarded to me for purchase
of materials. After receiving the purchase requisition I forward it to
the Accounts Manager and then to Project director for sanction. Then
I take permission for collection of quotations which was signed by
Accounts Manager and Project Director. After getting sanction I had
collected quotations and after the processing I had put up for sanction
for placing order after getting sanction, accounts Manager had placed
order of procurement of materials."
"Technical specifications/brand is mentioned by the Stores
clerk at the time of forwarding purchase requisition to Hatchery
Manager. Accordingly, we prepared quotations for procurement of
materials. If the specified material or brand is not available we will
call quotations of different types and after recommended by the
Hatchery Manager and sanctioned by the Project Director the
materials are being procured."
The Disciplinary Authority without considering the
evidence/statement of P.W-5 has held that the charge levelled against the
respondent is proved.
Charge no. 5 reads as follows:-
"While placing orders for 806 kg of artemia with M/s. Argent
Chemical Laboratories, USA on April 1995 for Rs. 22.81 lakh, (D-4),
the hatch out percentage, expiry date, etc. was not mentioned. This is
considered a serious lapse as earlier tenders (for considerably lower
price) are seen rejected on the ground of low hatch rate".
The Inquiring Authority while submitting Inquiry report has held that
Charge 5 is not proved but the Disciplinary Authority and the Appellate
Authority have held against the respondent.
The Disciplinary Authority and the Appellate Authority failed to
consider the evidence available on record. The P.W-2 during his evidence it
is categorically stated that it has never been a practice in OSSPARC to call
for samples from overseas suppliers test them to verify their efficiency and
place order accordingly. MPEDA normally invite quotations from reputed
suppliers and ask for quotations along with hatching efficiency for
processing the quotations. However, as already clarified the Project Director
can at any point of time seek the opinion of Hatchery Manager before
approving a proposal.
P.W-3 has stated that in few times MPEDA were getting the hatching
rates and expiry dates and same time it is not printed in tin. P.W-3 further
stated that if the hatching rate is 80 % artemia from the cysts as it is
thought to be a good hatching rate.
The Disciplinary Authority and the Appellate Authority failed to
consider the evidence available on record.
Charge no. 6 reads as follows:-
"In the instruction to the bank for opening L/C for the purchase
of 806 kg of artemia, (D-5), it was clearly prescribed as one of the
conditions that for effecting the payment to the supplier, "the test
certificate/inspection certificate, current dated, issued by supplier
specifying hatching rate, etc." should be insisted. However, the
supplier M/s. Argent Chemical Laboratories only produced a general
test certificate without indicating the hatch out percentage, (D-6).
Shri B. Basak failed to get a certificate from the supplier specifying the
hatch out rate, etc. He also failed to take up this issue with the bank.
In the instruction to the bank for opening L/C for the purchase of 806
kg of artemia, (D-5), it was clearly prescribed as one of the conditions
that for effecting the payment to the supplier, "the test
certificate/inspection certificate, current dated, issued by supplier
specifying hatching rate, etc." should be insisted, However, the
supplier M/s. Argent Chemical Laboratories only produced a general
test certificate without indicating the hatch out percentage, (D-6), Shri
B. Basak failed to get a certificate from the supplier specifying the
hatch out rate, etc. He also failed to take up this issue with the
bank".
The Inquiring Authority while submitting the inquiry report held that
charge no. 6 is proved but the Inquiring Authority while submitting the
inquiry report failed to consider the evidence of P.W-2, Shri A.K. Patnaik,
Accounts Manager, stated that while effecting payment we have never
received any communication from Andhra Bank informing any discrepancy
in the document received from the supplier and instead they have made the
payment on our behalf. The P.W-2 has further stated that the application
for L/C was made to the Andhra Bank on 18.04.1995 immediately after the
proposal was approved by the Project Director on the same day. The P.W-2
has further stated that there is no other procedure to obtain certificate from
supplier in case of L/C transaction. The P.W-2 had further stated that all
the originals documents such as invoice, packing list, inspection of quality
certificate, Certificate of Origin, Certificate of Insurance etc. are normally
dispatched by the supplier at a time soon after the consignment is
dispatched.
P.W-5 has further stated that the hatch rate was not mentioned in the
test and Inspection Certificate but the L/C was open and the material was
supplied against payment which was granted by the Andhra Bank and the
artemia received from the supplier was in June and there was no report
regarding the quality.
In the year 1995 there was an Indaqua exhibition at Madras where
some of MPEDA technical staff had been in Indaqua and collected the
catalogues from different suppliers. MPEDA have received one letter from
Argent along with the gift cheque where it mention that MPEDA technical
persons have collected product catalogues from them and everything was
mentioned in the product catalogue.
In a copy of printed letter send by Argent was mentioned that the
catalogue given to the technical persons in it, the technical specifications
were mentioned all the details of the product.
In the letter of Argent it is mentioned that the hatching rate was
mentioned in the product catalogue which was collected by the technical
staff.
The Disciplinary authority and the Appellate Authority have failed to
consider the evidence as stated above and have wrongly concluded that
charge 6 is proved against the respondent.
Charge no. 7 reads as follows:-
"As soon as the 806 kg was received, its quality including hatch
out rate should have been assessed and the period of expiry should
have been verified. Shri B. Basak failed to have these done."
The Inquiring Authority while submitting the report held that charge 7
is not proved but after receipt of the inquiry report, the Disciplinary
Authority had disagreed with the findings of the Inquiring Authority and
held that the charge 7 against the respondent is proved. The Disciplinary
Authority failed to consider that P.W-2 in his evidence has stated that as per
the requisition, received through the Hatchery Manager on 02.09.1994 is
specifying the requirements of various feed item for production of 80 million
seeds the local stock of artemia cysts was only 162 kg as such he was not
aware of any huge balance of artemia. The Disciplinary Authority and the
Appellate Authority have also failed to consider that Argent Chemical
Laboratory is a reputed supplier for production of feed.
P.W.5 further stated that the hatch rate was not mentioned in the test
and inspection certificate but the L/C was opened and the material was
supplied against payment which was guaranteed by the Andhra Bank and
the Artemia received from the supplier was utilised in the June and there
was no report regarding the quality.
The Disciplinary Authority and the Appellate Authority have failed to
consider the said evidence and have wrongly held that charge no. 7 is
proved against the respondent.
Charge 8 reads as follows:-
"When the 806 kg of Artemia from M/s. Argent Chemical
Laboratories was supplied in June 1995 it was clearly indicated that
the cysts would expire in April 1996, (D-7). Shri B. Basak failed to
assess the requirement of Artemia during the period from its delivery
till the date of expiry and to take action to consume or dispose of
otherwise the said Artemia before the expiry date, (D-8). The balance
662,840 kg costing Rs. 18,44,593 was later declared as scrap. Shri
Basak is responsible for this loss."
The Inquiring Authority has held that charge 8 is not proved but the
Disciplinary Authority as well as the Appellate Authority has wrongly held
that the charge is proved. The Disciplinary Authority and the Appellate
Authority failed to consider that the Presenting Officer has put the specific
question to the P.W.5 "When a quotation was invited from Argent Chemical
Laboratories on 20.03.1995 for supply of 400 kg (Utah strain of artemia
cysts their letter dt. 30.03.1995 enclosed the proforma invoice for 806 kg of
artemia. How come another 400 kg was in excess offered by the party. In
response to the said question, the P.W.5 categorically stated that after
checking by the Accounts Manager with the indent once again quotations
are invited for Sanfrancisco grade and Utah strain as per the purchase
requisition by the Accounts Manager. P.W-2 has also categorically stated
that there was a very good booking received during the year for supply of
cysts during the summer circle of 95-96 but due to huge cancellation was
received particularly from the farmer of Andhra Pradesh consequent upon
decease outbreak only in the month of May 1995, the farmers started
deferring their programme indefinitely.
Charge no. 9 reads as follows:-
"Even during the use of Artemia from June 1995 it has been reported
by the Hatchery Manager that the Artemia is giving very poor hatching
result, (D-9). No action was taken by Shri B. Basak to make a claim
from the supplier. The matter was finally taken up with a so called
agent of the supplier, only in April'96 by which time the expiry date
was already over."
The Inquiring Authority while submitting the inquiry report has held
that the charge no. 9 is not proved but subsequently after the disagreement
by the Disciplinary Authority, the Disciplinary Authority and the Appellate
Authority have held that charge is proved. The Disciplinary Authority and
the Appellate Authority failed to consider the evidence on record wherein
P.W-4 R. K. Mishra stated in his report dt. 19.03.1996 that document no. 5
to 9 submitted by him is stating low/negligible hatching rate of Artemia
Cysts was the first time. P.W-4 he has further stated that generally the
consumption of Artemia is varying from rearing to rearing depending on
following factors i.e. temperature, over rearing due to late sale. We were
calculated while giving indent considering the above factors are usually
getting little more quantity (10 to 15 %) for several sides otherwise it may
create problem during production. The P.W-4 further admitted that 12 to
13 kg of Artemia is being used in OSSPARC for production of one million PL-
20 during that period.
Without considering the above evidence the Disciplinary Authority and
the Appellate Authority wrongly come to the conclusion that charge no. 9 is
proved against the respondent.
The Hon'ble Single Judge has proceeded with the matter on the basis
of the legality and propriety of the decision making process. The findings of
the Disciplinary Authority is totally contrary to the evidence available on
record. This is not a case, the Court to sit in appeal over the finding of the
Disciplinary Authority. In the instant case, the Disciplinary Authority and
the Appellate Authority has totally disregarded and misread the evidence
available on record. The instant case is totally based on no evidence. The
evidence available on record is leading to the findings that the respondent
had acted with good intention for achieving the target of the authorities. No
evidence is available on record to prove that the respondent had acted in a
malafide intention to cause damage or financial loss to the authority. It is
the specific case that due to natural calamities, viral disease, and heavy
cyclone massive cancellation was done by the farmers due to which the
Artemia could not be sold out. It is not the case that the respondent with
the malafide intention had forged document and had brought the Artemia to
cause loss to the Company. In the instant case, though the inquiry was
conducted and collected materials but the material collected during the
inquiry has not established the misconduct against the respondent. The
judgment reported in 2021 (2) SCC 612 at paragraph 24 the Hon'ble
Supreme Court has held that:
"It is thus settled that the power of judicial review, of the
constitutional courts, is an evaluation of the decision-making process
and not the merits of the decision itself. It is to ensure fairness in
treatment and not to ensure fairness of conclusion. The
court/tribunal may interfere in the proceedings held against the
delinquent if it is, in any manner, inconsistent with the rules of
natural justice or in violation of the statutory rules prescribing the
mode of enquiry or where the conclusion or finding reached by the
disciplinary authority is based on no evidence. If the conclusion or
finding be such as no reasonable person would have ever reached or
where the conclusions upon consideration of the evidence reached by
the disciplinary authority are perverse or suffer from patent error on
the face of record or based on no evidence at all, a writ of certiorari
could be issued. To sum up, the scope of judicial review cannot be
extended to the examination of correctness or reasonableness of a
decision of authority as matter of fact."
The judgment has referred above is squarely applicable in the instant
case as the instant case also based on no evidence. The judgments referred
by the appellants are distinguishable as the fact of the instant case is totally
different. This is not the case that the respondent has forged or
manipulated any document and the respondent has suppressed the fact.
The Ld. Single Judge has not sat in appeal over findings of the authorities.
The Ld. Single Judge returned the finding that the authorities found no
evidence of misconduct. In view of the above, this Court is of the view that
the Hon'ble Single Judge has not committed any error and the judgment
passed in WP No. 6850 (W) of 2007 dt. 09.04.2009 does not require any
interference.
FMA 1087 of 2009 with IA No. CAN 2 of 2010 stands thus
dismissed.
Parties shall be entitled to act on the basis of a server copy of the
Judgment and Order placed on the official website of the Court.
Urgent Xerox certified photocopies of this Judgment, if applied for, be
given to the parties upon compliance of the requisite formalities.
I agree.
(Subrata Talukdar, J.) (Krishna Rao, J.)
Later,
The Counsel for the appellant prays for stay of the operation of order.
The Counsel for the respondent opposes the prayer for stay.
Prayer for stay is refused.
I agree.
(Subrata Talukdar, J.) (Krishna Rao, J.)
