Sheo Chandra Prasad v. State Of Bihar — 1988 DIGILAW 132 (PAT)

Judgment S. B. Sinha, J. 1. This writ application is directed against the order contained in Memo No.144999, dated 21-11-1986, issued under the signature of the managing Director of the Bihar Food and Civil Supply Corporation Limited whereby and whereunder the petitioner in view of the lapses on his part, was censured and his two annual increments were withheld cumulative effect as contained in Annexure-7 to the writ application as also the order contained in Memo No.67, dated 17-1-1977 issued by the respondent No.3 and as contained in Annexure-12 to the writ application ; and the order, dated 3-2-1979, issued by the respondent No.2 and as contained in Annexure-14 to the writ application as also the order dated 25-2-1982 issued under the signature of the respondent No.2 and as contained in Annexure-15 thereof. 2. The facts of the case lie in and very narrow compass and are not much in dispute. The petitioner was at the material time working as an Assistant godown Manager at Hasua whence the District Development Officer made an inspection of the aforementioned godown and found various irregularities therein. On the basis of the said inspection report, a show cause notice was issued to the petitioner which is contained in Annexure-3 to the writ application. Along with the aforementioned show cause notice, a copy of the report made by the District Development Officer was also enclosed. It further appears that the peritioner was also intimated by a letter bearing no.831 dated 19-6-1976 and as contained in Annexure-4 to the writ application that some complaints have been received relating to certain irregularities in respect of the said godown and by the said letter the petitioner along with the others were directed to follow the instructions contained therein. 3. Pursuant to the aforementioned show cause notice as contained in annexure-3 to the writ application, the petitioner filed a show cause on 23-6-1976. The said show cause is contained in Annexure-5 to the writ application. In the said show cause, the petitioner admitted that certain irregularities have been committed, but he maintained that prior to inspection he was not specifically instructed in such matters. It appears that, thereafter an enquiry report was submitted by the Enquiring Officer on 9-7-1976 as contained in Annexure-6 to the writ application. 4. In the said show cause, the petitioner admitted that certain irregularities have been committed, but he maintained that prior to inspection he was not specifically instructed in such matters. It appears that, thereafter an enquiry report was submitted by the Enquiring Officer on 9-7-1976 as contained in Annexure-6 to the writ application. 4. By reason of the said enquiry report the enquiring officer upon consideration of the facts and circumstances of the case came to the conclusion that the petitioner has committed irregularities. He further took into consideration the categorical admission made by the petitioner relating to the charges framed as against him. However, the Enquiry Officer further held that the petitioner also committed irregularities in not obtaining the signatures of the customers on the sale register and cash memos which were allegedly recovered by the District development Officer in course of his inspection. By reason of an order dated 28-11-1976 the respondent No.3 held that the rice was supplied to one individual on the ration card of 3 to 4 ration card holder and further came to the conclusion that receipts from many of the purchasers were not obtained in token of receipt of rice. The respondent No.3 in this view of the matter directed that the petitioner be censured and his two increments withheld with comulative effect. 5. The petitioner, thereafter, filed a representation before the District manager of the State Food Corporation, Nalanda, which was rejected by an order, dated 17-1-1977 as contained in Annexure-12 to the writ application. The petitioner also filed a representation before the Food Commissioner, who by a detailed order, dated 2-2-1970 as contained in Annexure-14 to the writ application dismissed the same. It also appears that the petitioner further filed an appeal before the Minister of the Food Department, which was also dismissed and communicated to the petitioner by a latter dated 25th February, 1982, issued under the signature of the Secretary of the Food Commissioner and as contained in Annexure-16 to the writ application. 6. Mr. Dilip Kumar Tiwary, learned Counsel appearing on behalf of the petitioner in support of this petition raised two-fold contentions. Firstly he submitted that in the instant case no witness was examined as such the entire proceeding is vitated in law. 6. Mr. Dilip Kumar Tiwary, learned Counsel appearing on behalf of the petitioner in support of this petition raised two-fold contentions. Firstly he submitted that in the instant case no witness was examined as such the entire proceeding is vitated in law. The learned Counsel secondly contended that in any event, the petitioner was inter alia being charge-sheeted for committing defalcation in respect of the rice which fact haying not been proved, the disciplinary authority ought not to have passed the impugned order as contained in annexure-7 to the writ application. According to the learned counsel for the petitioner, the disciplinary proceedings were to be conducted in terms of the provisions of Civil Services (Classification, Control and Appeal) Rules but the procedures thereof were not followed. 7. On behalf of the respondent corporation nobody has appeared and as such this Court will have to proceed on the basis that the provisions contained in Civil Services (Classification, Control and Appeal) Rules applies to the case of the petitioner, although it is not possible for this Court to come to a definite conclusion as to whether the said rule apply to the case of the petitioner or not. Even assuming that the said rule apply to the case of the petitioner, in terms of Rule 49 thereof, the punishment of censure and withholding of increments or promotion including the stoppage of E. B. were penalties within the meaning of the said provision. In terms of Rule 55 of the said rules no order imposing the penalty specified in clause I and clause II of Rule 49 meaning thereby censure and withholding of increments or promotion can be passed unless the petitioner has been given an adequate opportunity of making a representation that he may desire to make, if any, has been taken into consideration before the order is passed. 8. Apparently the penalties awarded on the petitioner are minor in nature. Further it is apparent from the facts as mentioned herein before that the petitioner was charge-sheeted on the basis of the enquiry report made by the district Development Officer. The said enquiry was evidently conducted in presence of the petitioner and the witnesses were also examined in his presence. In his show cause, the petitioner has categorically admitted that there had been certain irregularities, but he tried only to explain away the same. 9. Mr. The said enquiry was evidently conducted in presence of the petitioner and the witnesses were also examined in his presence. In his show cause, the petitioner has categorically admitted that there had been certain irregularities, but he tried only to explain away the same. 9. Mr. Tiwary has drawn my attention to the contents of Memo No.698, dated 29-9-1976 issued by the respondent No.6 and as contained in Annexure-1 to the writ application for the purpose of showing that no instruction was issued to the concerned persons like the petitioner to obtain the signature of the customers on the sale registers or on the cash memoes. It was further submitted on the basis of the aforementioned officer order that no embargo was put on the supply of the foodgrains to one of the customers in respect of 2 or more ration card-holder. 10. Mr. Tiwary may be right that such embargo cannot be found out from Annexure-1 to the writ application, but there cannot be any doubt that the respondent corporation expected that its Assistant Godown Managers would act prudently and follow the normal procedures. It may be mentioned here that it has not been disputed that there had been no procedure for obtaining the signatures of the customers on the sale registers or on the cash memos, but the very fact that the petitioner having admitted that he had committed such certain irregularities, cannot now be heard to say that he was not aware of such procedures which were normal ones and are to be followed by the experienced and prudent Managers. Further from a persual of Annexure-1 to the writ aplication, it would be evident that the contents thereof are not exhaustive and other circulars/office orders had ealier been issued prior to issuance of said memo, 11. It is just possible that there were certain other instructions also. Further from the enquiry report as contained in Annexure-6 to the writ application, it is evident that further enquiry was held and the petitioner was given an opportunity therein also. It is just possible that there were certain other instructions also. Further from the enquiry report as contained in Annexure-6 to the writ application, it is evident that further enquiry was held and the petitioner was given an opportunity therein also. During the said enquiry it clearly transpired that the petitioner not only did not obtain the signatures of the consumer on the cash memos or on the sale register, but even rice was distributed to some persons without entering the same in the ration card and further rice was also distributed to one person, who brought two or three ration cards. The enquiry officer, there, came to the conclusion that the petitioner committed irregularities in so far as he did not obtain the signature of the customers on the sale register and on the cash memos. The report made by the District Manager, Nawadah, wherein it was allegedly found that the petitioner has not committed any serious misconduct is of little or no consequence. In the said report, itself the District manager, however, has mentioned that the petitioner should be cautioned. In view of the fact that there has been a substantial compliance of the provisions of natural justice and further in view of the fact that the disciplinary authorities proceeded mainly on the basis of the admission made on behalf of the petitioner, in my opinion, it cannot be said that there was a violation of Rule 55 of the said Rules even assuming that the same apply to the case of the petitioner. It is now well settled that this Court in exercise of its power conferred upon it under Article 226 and 227 of the Constitution of India is not to consider as to whether the punishment imposed upon a delinquent officer is just and proper or not unless the same is grossly disproportionate. Reference in this connection may be made to the case of State of Orissa and others V/s. Baidyabhushan Mohapatra, AIR 1963 SC 779 , wherein it has been held as follows : ". . . . But the Court in case in which an order of dismissal of a public servant is impugned, is not concerned to decide whether the sentence imposed, provided it is justified by the rules, is appropriate having regard to the gravity of the misdemeanour established. . . . But the Court in case in which an order of dismissal of a public servant is impugned, is not concerned to decide whether the sentence imposed, provided it is justified by the rules, is appropriate having regard to the gravity of the misdemeanour established. The reasons which induce the punishing authority, if there has been any enquiry consistent with the prescribed rules, are not justifiable ; nor is the penalty open to the review by the Court. " I may add that this Court may exercise its jurisdiction under Articles 226 and 227 of the Constitution in the matter of quantum of punishment also, if the same is wholly arbitrary, so as to attract the provisions of Articles 14 and 16 of the Constitution of India. 12. In view of the facts as mentioned herein before that the authorities proceeded on the basis of admissions made by the petitioner, in my opinion, nothing further was required to be done. Reference in this connection may be to the care of S. L. Tripathy V/s. State Bank of India and others, AIR 1984 sc 273 , wherein it has been held as follows : "-----The basic concept is fair play in action administrative, judicial or quasi-judicial. The concept of fair play in action must depend upon the particular lis, if there be any, between the parties. If the credibility of a person who has testified or given some information is in doubt, or if the version or the statement of the person who has testified, is in dispute, right of cross-examination must inevitably form part of fair play in action but where there is no lis regarding the fact but certain explanation of the circumstances there is no requirement of cross-examination to be fulfilled to justify fair play in action, When on the question of fact there was no dipute, no real prejudice has been caused to a party aggrieved by an order by absence of any formal opportunity of cross-examination per se does not invalidate or vitiate the decision arrived at fairly. This is more so when the party against whom an order has been passed does not dispute the facts and does not demand to test the veracity of the version of credibility of the statement. ". This is more so when the party against whom an order has been passed does not dispute the facts and does not demand to test the veracity of the version of credibility of the statement. ". The said decision has been quoted with approval by two Division Benches of this Court in the cases of Girija Nandan Singh V/s. The State of Bihar, 1987 PLJR 92 and in M/s. Instrumentation Ltd. V/s. Presiding Officer, 1988 PLJR 145. 13 In this view of the matter I do not find substance in the submission of Mr. Tiwary, Mr. Tiwary further submitted that no reason has been assigned by the appellate authority. As mentioned hereinbefore the petitioner approached three different authorities purported to be being aggrieved by and dissatisfied with the order, passed by the disciplinary authority as contained in Annexure-7. Thus the different authorities by their respective orders contained in Annexures-12, 15 and 14 refused to interfere with the order passed by the Disciplinary authorities. 14. From a persual of the order, passed by the Food Commissioner and as contained in Annexure-14 to the writ application, it is evident that he has assigned sufficient reasons in support of the order. However, it is now well settled that in absence of any statutory requirement the appellate authority need not assign any reason, if his order is one of affirmance. Nothing has been pointed out before me to show that under any statutory rules, the appellate authority was also required to assign some reasons. As a matter of fact the petitioner has not stated as to who was the appellate authority. He as mentioned hereinbefore, filed two representations one before the District Manager and another before the Food Commissioner, but it is not known as to whether they were designated as the appellate authorities or not. If they were the appellate authorities, there is no reason as to why the petitioner would not have preferred regular appeal before them instead of filing the representations. The petitioner, however, appears to have preferred an appeal only before the Food commissioner (Annexure-13 ). The petitioner preferred the said appeal purported to be in terms to Rule 4 of the Bihar and Orissa Service (Discipline and Appeal)Rules, 1935 which has been disposed of as mentioned hereinbefore by reason of Annexure-14 to the writ application. 15. The petitioner, however, appears to have preferred an appeal only before the Food commissioner (Annexure-13 ). The petitioner preferred the said appeal purported to be in terms to Rule 4 of the Bihar and Orissa Service (Discipline and Appeal)Rules, 1935 which has been disposed of as mentioned hereinbefore by reason of Annexure-14 to the writ application. 15. As mentioned hereinbefore, the said authority meaning thereby the food Commissioner, while passing an order dated 2-2-1970 as contained in annexure-14 to the writ application took into consideration all relevant facts before passing the said order. In the said order, the defence raised on behalf of the petitioner had also been taken into consideration and in this view of the matter, in my opinion, there is no infirmity in the appellate order also. 16. Mr. Tiwary has, further, drawn my attention to the memorandum of appeal wherein it had been alleged that he had not been given adequate opportunity before the order of punishment was passed by the Managing Director. From the said memo of appeal it does not appear as to how and in what manner the rule audi alteram partem was violated. As noticed hereinbefore, the authorities concerned proceeded on the basis of the admission made by the petitioner. In this view of the matter and as I have held hereinbefore, it was not even necessary to initiate any departmental proceeding whatsoever, but in the instant case there has been a substantial compliance of the requirements of natural justice. 17. In the result I do not find any merit in this writ application and is accordingly dismissed. 18. However, before parting with the case it may be mentioned that mr. Tiwary stated before me that although the punishment has been meted out to the petitioner as far back as in the year 1976, but till now he has not been considered for promotion only because of orders of punishment as mentioned hereinbefore and he has suffered a lot. In view of the fact that admittedly the irregularities committed by the petitioner were minor in nature and further taking into consideration that even the punishment inflicted upon him was only censure and withholding of two increments with cumculative effect, in my opinion, there is no reason as to why the petitioner should continue to be harassed. In view of the fact that admittedly the irregularities committed by the petitioner were minor in nature and further taking into consideration that even the punishment inflicted upon him was only censure and withholding of two increments with cumculative effect, in my opinion, there is no reason as to why the petitioner should continue to be harassed. Evidently the punishment are not such which would debar the petitioner from obtaining further promotion, if he is otherwise fit and eligible therefor. I hope and trust the respondents shall take this fact into consideration, 19. In the result this application is accordingly dismissed. However, in the facts and circumstances of the case, there will be no order as to costs. Application dismissed.