Bharat Coking Coal Limited vs Madan Singh ......Writ
2023 Latest Caselaw 896 Jhar

                                                  1

            IN THE HIGH COURT OF JHARKHAND AT RANCHI
                      L.P.A. No. 199 of 2014

       1. Bharat Coking Coal Limited, a Government Company within the
          meaning of Section 617 of the Companies Act having its registered
          Office at Koyla Bhawan, District- Dhanbad through its Chairman cum
          Managing Director
       2. Director (Personnel), Bharat Coking Coal Limited, Koyla Bhawan,
          District Dhanbad
       3. Project Officer, Shatabadi Open Cast Project, Bharat Coking Coal
          Limited, District Dhanbad
       4. Personnel Manager cum Enquiry Officer, Shatabadi Open Cast Project
          Colliery, BCCL, District Dhanbad
                                                   ...... Respondent/Appellants
                                            Versus
       Madan Singh                                 ......Writ
Petitioner/Respondents
                                       --------

CORAM: Hon'ble Mr. Justice Aparesh Kumar Singh Hon'ble Mr. Justice Deepak Roshan

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      For the Appellants               : Mr. Anoop Kr. Mehta, Advocate
      For the Respondent               : Mr. Pandey Niraj Rai, Advocate
                                       -------


10/24.02.2023     The instant appeal is directed against the judgment dated

16.01.2014 passed in W.P.(S) No. 5919 of 2009, whereby the learned Single Judge has allowed the writ application and directed the appellants to reinstate the respondent/writ petitioner.

2. The brief facts of the case are that the respondent/writ petitioner was appointed as a Clerk (T) Category-I vide letter dated 25.02.1991. On 06/10.01.1997, a show-cause notice was issued to the petitioner for committing misconduct under Clauses 26.1.2., 26.1.11 and 26.1.15 of the certified standing Order of BCCL. An inquiry was conducted into the matter and the inquiry report dated 05.04.1997 was submitted finding the charges not proved. Subsequently, on the basis of joint inspection report dated 03.10.1997, another charge memorandum dated 19.10.2000 was issued to the petitioner. An inquiry was conducted into the matter and the inquiry report dated 04.01.2004 was submitted finding the changes proved against the petitioner. A second show-cause notice was issued to the petitioner on 14.4.2007 to which the petitioner submitted his reply. The order of dismissal from service was passed on 28.04.2007, and the appeal preferred by the respondent/writ petitioner has also been dismissed by order dated 16.10.2009. The respondent/writ petitioner challenged the said order of dismissal before this court in the writ application and the learned Single Judge allowed the same and directed the appellants to reinstate the

petitioner. For brevity, relevant paragraphs of W.P.(S) No. 5919 of 2009 are quoted herein below.

"11. I find that a specific charge of misappropriation of 3499.42 liters of diesel was framed against the petitioner however, no finding of misappropriation has been recorded by the enquiry officer. The disciplinary authority has noticed that the enquiry officer has found charge partly proved and he has recorded his concurrence with the finding of the enquiry officer. I further find that the disciplinary authority has also not recorded a finding of "misappropriation of diesel" established from the evidence.

12. The charge-memo which was issued on 06/10.01.1997 is said to have been recalled and a charge memorandum dated 19.10.2000 has been issued, on the basis of a joint inspection report dated 03.10.1997. I do not find any justification for initiating a departmental proceeding against the petitioner in the year, 2000 with respect to the alleged misappropriation committed by him in the year, 1994. The joint inspection report is not the reason for recalling the charge-memo dated 10.01.1997. Even the joint inspection report is dated 03.10.1997. Moreover, the finding recorded in the inquiry report dated 05.04.1997 has not been considered at all. Since, the petitioner has alleged wrong calculation by the Department and the inquiry officer, the inquiry report dated 05.04.1997 should have been considered by the inquiry officer. I further find that, the charge framed against the petitioner is absolutely vague. No particular or detail has been indicated either in the charge memorandum or in the statement of imputation of charge supplied to the petitioner. I am of the view that even if a delinquent employee has not raised objection with respect to vagueness of charge, the charge must contain specific details. In the present case except that, the misappropriation relates to the year 1994, no specific instance has been indicated in the memorandum of charge.

15. The list of documents attached to the charge memorandum would disclose that, a copy of first information report being R.C. 3(A)/98 (D) and a copy of joint inspection memo dated 03.10.1997 were produced on behalf of the department. It is an admitted position that, the C.B.I. decided not to proceed in the case after investigation into the matter. The inquiry officer has also recorded that, since the evidence collected was not sufficient for launching prosecution, no charge-sheet was filed in the matter. The charge which pertains to the misappropriation committed in the year, 1994 involving shortage of 3499.42 liters of diesel has not been proved in the course of departmental inquiry. The inquiry officer has found shortage of 620.74 liters of diesel only.

16. I further find that though the petitioner was incharge of the depot, no other supervisory officer of the petitioner has been proceeded against for dereliction in duty in not detecting the alleged misappropriation. Though the misappropriation was committed in the year, 1994, a charge-memo was issued in the year 1997 which was recalled and again a memorandum of charge was issued in the year, 2000. The inquiry report was submitted in the year, 2004, the second show-cause notice was issued in the year, 2007, the penalty order was passed in the year, 2007 and the appellate order has been passed in the year, 2009. I am of the view that serious prejudice has been caused to the petitioner as the proceeding has concluded 15 years after the alleged incident. In "State of Punjab Vs. Bant Singh" reported in (1990) Suppl. SCC 738, the proceeding was initiated in the year 1987 with respect to the irregularities committed in the year 1975-77, the Hon'ble Supreme Court held that it will be unfair to permit the departmental enquiry to proceed further."

3. Mr. Anoop Kumar Mehta, learned counsel for the petitioner assailed the impugned order by submitting that the learned Single Judge

has failed to take into consideration that the memo of charge was clear and it was not vague and also the fact that enquiry officer has found the shortage of diesel proved to the extent of 620.74 liters and not the quantity as mentioned in the charge memo and thus the charge of theft /misappropriation, though for a lesser quantity, was established.

Mr. Mehta further contended that the respondent-writ petitioner himself allowed the departmental enquiry to proceed ex-parte for which he himself is to be blamed. The finding of the learned Single Judge that disciplinary authority has not recorded any finding of misappropriation of diesel is not correct, inasmuch as, the law is now well settled that if the disciplinary authority agrees with the findings of the enquiry officer, he is not required to assign any reason. He further submits that the finding of the learned Single Judge is also bad in law when he held that great prejudice is caused to the respondent/writ petitioner because the proceeding was concluded after 15 years of the alleged incident.

He lastly submits that law is now no more res integra, inasmuch as, the court should not go into the correctness of the choice made by the administrator and the court should not substitute its decision for that of the administrator. The scope of judicial review is limited to the deficiency in decision making process and not the decision.

4. Learned counsel for the respondent-writ petitioner supported the judgment and submits that there is no merit in the instant appeal. The learned Single Judge has decided each and every point of the case and finally, after deliberating the issues involved in the matter, allowed the writ application and directed for reinstatement. Learned counsel further contended that the punishment of dismissal is disproportionate to the charge proved. Thus, the instant appeal may be dismissed.

5. Having heard learned counsel for the parties and after going through the impugned order and other relevant documents annexed with this memo of appeal, it appears that the enquiry officer held the charge to be partially proved. For brevity, relevant conclusion of the enquiry officer is extracted hereinbelow:

"CONCLUSION

1. The charge as contained in the statement of imputation of misconduct that CE had recorded the opening balance of diesel in tank-A as 9395 Ltrs. Instead of actual figure of 9593 Ltrs as the opening balance of diesel in tank-A as on 01.04.1994 in the said monthly statement has been held proved.

2. (i) The charge of shortage of diesel in Tank-A during the tenure of Sri Madan Singh has been proved to the extent of 355.71 ltrs. only and not 3034.9 ltrs. as given in the statement of imputation of misconduct of the chargesheet.

(ii) The charge of shortage of diesel in Tank-B during the tenure of Sri Madan Singh has been proved to the extent of 265.03 ltrs. only and not 465.03 ltrs. as given in the statement of imputation of misconduct of the chargesheet.

Hence, Total shortage =355.71 +265.03 = 620.74 ltrs.

Hence, the charge regarding shortage of diesel during the tenure of Sri Madan Singh is held proved to the extent of 620.74 ltrs. in place of 3499.42 ltrs. as contained in the memorandum.

HENCE, THE CASE IS ONLY PARTIALLY PROVED."

The above conclusion clearly goes to show that though the allegation was of misappropriation of diesel to the extent of 3499.42 ltrs. but the charge has been proved to the extent of shortage of 620.74 ltrs. The learned Single Judge has not refuted the conclusion of the enquiry officer so far the shortage of 620.74 ltrs of diesel is concerned but goes on to hold that the charge of misappropriation against the petitioner was not proved.

6. It further transpires from record that the learned Single Judge has given a finding that serious prejudice has been caused to the respondent/writ petitioner, on the ground of delay in completion of disciplinary proceeding. The law is now well settled, that the scope of judicial review is limited only to the deficiency in decision-making process and not the decision itself. Reference in this regard may be made to the case of V. RAMANA Versus A.P. SRTC AND OTHERS reported in (2005) 7 SCC 338, at Paragraph 11 and 12, as under:

"11. The common thread running through in all these decisions is that the court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the court, in the sence that it was in defiance of logic or moral standards. In view of what has been stated in Wednesbury case the court would not go into the correctness of the choice made by the administrator open to him and the court should not substitute its decision for that of the administrator. The scope of judicial review is limited to the deficiency in decision-making process and not the decision.

12. To put it differently unless the punishment imposed by the disciplinary authority or the Appellate Authority shocks the conscience of the court/Tribunal, there is no scope for interference. Further to shorten litigations it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. In a normal course if the punishment imposed is shockingly disproportionate it would be

appropriate to direct the disciplinary authority or the Appellate Authority to reconsider the penalty imposed."

7. The findings of the learned Single Judge, so far as reinstatement of the respondent/writ petitioner is concerned, amount to substitution of the opinion of the employer on the quantum of punishment to be imposed in the circumstances where the charge has undisputedly been partially proved. However, it also appears from the records that though the petitioner was in-charge of the depot, no other supervisory officer of the respondent/writ petitioner has been proceeded against for dereliction in duty in not detecting the alleged misappropriation where the delinquent junior official was only held responsible.

It is also pertinent to mention the admitted fact that the charge of misappropriation was partially proved only to the extent of shortage of only 620.74 liters and not 3499.42 liters which the petitioner could not explain and account for though the total amount of shortage of diesel alleged in the chargesheet could not be substantiated by the Presenting Officer during enquiry. As noted above, petitioner was merely a Clerk (T) Category (I). As such, in our opinion, the punishment of dismissal from service imposed by the disciplinary authority, since the charge was only partially proved, appears to be disproportionate to the established misconduct.

8. Since the quantum of penalty to be imposed lies in the domain of the Disciplinary Authority, the matter is remanded to the Disciplinary Authority to pass a fresh order on the quantum of punishment. The impugned judgment, so far it directs reinstatement of the petitioner, is accordingly set aside. The order of dismissal passed by the Disciplinary Authority and affirmed in appeal are also set aside to enable the Disciplinary Authority to pass a fresh order on the quantum of punishment to be imposed on the delinquent petitioner.

9. Accordingly the appeal is allowed in the manner indicated above.

(Aparesh Kumar Singh, J.)

(Deepak Roshan, J.)

s.m.