Gaya Prasad v. State Of Bihar — 1995 DIGILAW 565 (PAT)

Judgment Ashish N. Trivedi, J. 1. -the petitioner superannuated as Senior Store Keeper in the Bihar State Electricity Board (hereinafter referred to as the Board) on 30.4.1990 and has questioned the penalty imposed upon him on the conclusion of the departmental proceeding and has prayed for quashing the order dated 30.4.1990 communicated to the petitioner vide Memo No.646 dated 19.6.1990 (Annexure-12) as well as Memo no.1622 dated 18.9.1992 (Annexure-16)ordering the recovery of a sum of Rs.69,071.79 on account of cost of 29.389 metric tonnes of 7/14 G. I. Wire with interest from the pension and gratuity payable to the petitioner and so also the Office Order no.3233 dated 30.9.1992 (Annexure-17)sanctioning 50% pension of the petitioner and ordering that the outstanding sum of rs.1,74,057.46 be recovered from 50% pension and D. A. relief per month of the petitioner till the liquidation of the outstanding amount, and also for quashing Memo no.3334 dated 30.9.1992 (Annexure-17/1)by which a sum of Rs.38,500.00 has been sanctioned to the petitioner as D. C. R. gratuity, which has been adjusted against the dues amounting to Rs.2,12,577.46, Rs.69,071.79 on account of short material and rs.1,43,485.67 on account of interest thereon and also for a direction to the Respondents to provide all due notional promotion benefits including the selection grade pay scale to the petitioner and to pay all arrears including retirement benefits with interest at bank rate to the petitioner. 2. From the pleadings of the parties and the documents on record, the factual position that emerges is that the petitioner was initially appointed in the Public Health and Engineering Department, Government of Bihar, Patna and joined as Store Superintendent on 1.4.1958 in the Board and since, 1.10.1962 he discharged his duties on the post of Senior Store Keeper in various electrical Central Stores of the Board at different places and superannuated as Senior store Keeper, Electric Central Stores, Arrah on 30.4.1990. 3. In 1966 while the petitioner was working as Senior Store Keeper, Central stores, Muzaffarpur, he was transferred to purnea and handed over the charge of central Stores, Muzaffarpur to Sri Sarbdeshwar prasad, Assistant Store, Keeper, central Stores, Muzaffarpur. 4. The Chief Engineer (Purchase and stores) vide the Memo. 3. In 1966 while the petitioner was working as Senior Store Keeper, Central stores, Muzaffarpur, he was transferred to purnea and handed over the charge of central Stores, Muzaffarpur to Sri Sarbdeshwar prasad, Assistant Store, Keeper, central Stores, Muzaffarpur. 4. The Chief Engineer (Purchase and stores) vide the Memo. No.845 dated 27.4.1976 (Annexure-2) called upon the petitioner to explain the shortage of 29.389 metric tonnes of 7/14 G. I. Wire, in response to which the petitioner made an application (Annexure-4) to the Chief Engineer for permission to inspect the stores and the relevant papers to enable him to file an effective reply and according to the petitioner, despite repeated requests no heed was paid by the authorities. 5. Eventually the charge sheet dated 23.9.1978 (Annexure-8) was issued by the joint Secretary of the Board stating that the chief Engineer (Purchase and Stores) has reasons to believe that the petitioner while posted as Senior Store Keeper, Central stores, Muzaffarpur has been prima facie guilty of gross misconduct, as specified in the charge sheet, which if proved will lead to his dismissal and, therefore, it has been decided that the proceeding be drawn up against him and the petitioner was called upon to submit his written statement, if any, to Sri G. N. Sinha, Director, Departmental proceedings of the Board, the Enquiry Officer within a fortnight of the receipt of the communication. The charge against the petitioner was that on the eve of his transfer from the post of Senior Store Keeper, central Stores, Muzaffarpur in the year 1966, he physically handed over the charge of 11.095 metric tonnes of 7/14 G. I. Wire to his successor whereas the ledger balance of 7/14 G. I. Wire was 40.484 metric tonnes on the day of handing over charge in the said stores but the petitioner gave short charge of 29.389 metric tonnes of 7/14 G. I. Wire to his successor and the petitioner was, therefore charged for defalcation of 29.389 metric tonnes of 7/14 G. I. Wire. By office Order No.1141 dated 11.3.1980, the suspension of the petitioner was revoked without prejudice to the departmental proceeding and he was posted in the Office of the Electrical Superintending Engineer (Stores) of the Board at Patna. 6. By office Order No.1141 dated 11.3.1980, the suspension of the petitioner was revoked without prejudice to the departmental proceeding and he was posted in the Office of the Electrical Superintending Engineer (Stores) of the Board at Patna. 6. In the meanwhile, there was change of Enquiry Officers and ultimately the Enquiry officer, Sri A. Narayan conducted the enquiry against the petitioner and submitted his Report with his letter no.212 dated 11.6.1981 and gave benefit of doubt to the petitioner, as the Store ledger and Cardex of 7/14 G. I. Wire could not be produced before him. The Enquiry Officer, therefore, advised the Board to take all possible steps to search out the Stock Ledger and Cardex of 7/14 G. I. Wire for the period from 1.4.1966 to June, 1966 to verify the entries therein in order to ascertain the correct factual position regarding defalcation. In pursaunce of the advice of the Enquiry Officer, the Board entrusted Sri R. C. Prasad, the then Accounts Officer with the task of making thorough enquiry and to give specific observations regarding the whereabouts of the Stock Ledger and Cardex of 7/14 G I. Wire for the period from 1.4.1966 to 30.6.1966 pertaining to the Central stores, Muzaffarpur vide his letter no.1609 dated 19.10.1985. 7. According to the Board, Sri R. C. Prasad in his first enquiry report dated 30.4.1987 stated that the Stock Ledger and cardex in question could not be located as the cardex system was introduced with effect from 1.4.1966 and prior to that the store Ledger had been checked by him which indicated the closing balance of stock of 28.3.66 as 30.081.065 metric tonnes and thereafter no ledger had been maintained and in order to find out the stock transactions for the period with effect from 1.4.1966 to the period when the petitioner handed over the charge of the stores, the S. R. B. S. and the S. I. B. S. and the charge report dated 25.6.1966 were searched out which showed the book balance and physical balance of 7/14 G. I. Wire as 11.09 metris tonnes whereas the closing balance on 20.6.1966 was 40.483.605 metric tonnes and thus there was discrepancy to the extent of 29.39 metric tonnes. 8. 8. In the second report dated 12.1.1990 and the third report dated 24.2.1990, Sri M. C. Prasad after examining certain documents and withness who had been earlier posted at the Central Stores, muzaffarpur finally came to the conclusion that the petitioner may not be exonerated of his negligence as it was evident that the actual stock position on the date of handing over the charge by the petitioner was 40.483.60 metric tonnes whereas the petitioner handed over charge of only 11.319 metric tonnes and thus the petitioner did not hand over 29.389.650 metric tonnes of 7/14 G. I. Wire. 9. The Director of Personnel of the board vide the Memo No.646 dated 19.6.1990 communicated the Boards Office order No.2144 dated 30.4.1990 (Annexure-12)issued by the Secretary of the Board, by which the departmental proceeding were concluded and it was ordered that the price of 29.389 metric tonnes of 7/14 G. I. Wire with interest shall be recovered from the petitioner. In the Office Older No.2144 dated 20.4.1990, it has, inter alia, been stated that "after dueconsideration of the finding of the Enquirying officer, written statements of the proceeding and other connected papers, the charge of shortage of Boards material amounting to 29.389 metric tonnes of 7/14 G. I. Wire has been found to be substantiated and it has, therefore, been decided to recover the price of the material with interest from the petitioner" . 10 The petitioner thereafter filed a writ petition which was registered as C. W. J. C. No.5153/1990 in this Court, which was allowed with the observation that "the petitioner shall be entitled to prefer statutory appeal or take any other measure in accordance with law challenging the order of punishment and the Enquiry Report and withholding of payment of post retirement benefits. The Respondents are directed to make payment to the petitioner keeping apart the amount involved which is to be held by them subject to any final order of the disciplinary authority or any court. The appeal, if any, shall be disposed of within a period of two months from the date of receipt of such appeal. The Respondents are directed to make payment to the petitioner keeping apart the amount involved which is to be held by them subject to any final order of the disciplinary authority or any court. The appeal, if any, shall be disposed of within a period of two months from the date of receipt of such appeal. After the said appeal is disposed of, the final order has to be passed by the authority concerned regarding the final payment of post retirement benefits on the basis of said appellate order and the balance payment has to be made accordingly within a period of one month from the date of receipt of the appellate order, if any. " 11. The petitioner thereafter preferred an Appeal (Annexure-a) before the Chairman of the Board. The Joint Secretary of the Board by the Memo No.1622 dated 18.9.1992 communicated the decision of the Chairman of the Board rejecting the Appeal of the petitioner and the direction that the cost of 29.389 metric tonnes of 7/14 G. I. Wire assessed at Rs.60,071.79 plus simple interest shall be recovered from the pension and gratuity payable to the petitioner and the consequential impugned orders, Annexure-16, 17, 17/1 were then issued by the respondents. 12. Mr. Vyas Muni Singh, learned counsel for the petitioner submitted that the charges were stale, hence it was unreasonable to subject the petitioner to the disciplinary proceeding, the petitioner handed over the charge in June, 1966 and the charge sheet was issued on 23.9.1978 and the departmental proceeding were concluded by the order dated 30.4.1990. 13. Learned counsel further submitted that the punishment order suffers from errors apparent on the face of the record as it does not disclose any material or basis for punishing the petitioner. Mr. Vyas Muni singh further contended that the departmental enquiry was not conducted in consonance with the principle of natural justice, since the petitioner was denied opportunity to lead evidence in his defence and was not supplied the copies of the enquiry reports, before imposition of the impugned penalty. Learned counsel also submitted that none of the Enquiry Officers have recorded the finding that the shortage took place during the tenure of the petitioner as Senior Store keeper, Central Stores, Muzaffarpur. 14. Learned counsel also submitted that none of the Enquiry Officers have recorded the finding that the shortage took place during the tenure of the petitioner as Senior Store keeper, Central Stores, Muzaffarpur. 14. Learned Counsel submitted that since the departmental proceeding have been conducted in violation of the principle of natural justice, the impugned penalty is a nullity and the petitioner is entitled to notional promotion and consequential post retirement benefits on that basis. 15. Mr. Mihir Kumar Jha, learned counsel for the Board submitted that neither in the Writ Petition nor in the Memorandum of appeal, it has been stated by the petitioner that he was denied opportunity of hearing of opportunity to lead evidence in the departmental enquiry. He submitted that it was not obligatory for the Board to supply copy of the enquiry reports to the petitioner before imposition of the impugned penalty. Learned counsel submitted that since the plea of denial of opportunity of hearing was not raised in the earlier writ petition, which was allowed by this Court by the order dated 25.7.1991, therefore, it is not open for the petitioner now to make a grievance of denial of adequate opportunity of defence. 16. The hearing of the writ petition was adjourned to enable the learned counsel for the Board to bring on record the relevant material or produce the files of the departmental proceeding against the petitioner to enable us to ascertain, whether in the enquiry conducted by Sri R. C. Prasad, the petitioner had been given an opportunity to lead evidence to defend himself, as from the Reports dated 12.1.1990 and 24.2.1990 (Annexure-18 and 18/1), it appeared that neither the petitioner had been given notice to appear before him in the enquiry nor did the petitioner participate in the enquiry made by Sri R. C. Prasad. 17. A Supplementary Counter Affidavit dated 6.9.1995 was filed by the Deputy Law advisor of the Board on 7.9.1995 in which it has, inter alia, been stated that File No.7/a-S/2010/98 and the four linked files of the departmental proceeding against the petitioner are not traceable, 18. 17. A Supplementary Counter Affidavit dated 6.9.1995 was filed by the Deputy Law advisor of the Board on 7.9.1995 in which it has, inter alia, been stated that File No.7/a-S/2010/98 and the four linked files of the departmental proceeding against the petitioner are not traceable, 18. Having considered the submissions made by the learned counsel for the parties and the material on record, we are of the view that the departmental proceeding have not been conducted in accordance with law and the penalty imposed upon the peti-tioner cannot be sustained and it is, therefore, not necessary to dwell on the other contentions of the learned counsel for the petitioner. 19. According to the Board, the petitioner is a workman and the service conditions are governed by the Certified standing Orders framed by the Board under the Industrial Employment (Standing Orders) Act, 1946. Paragraph-30 of the Certified Standing Orders prescribes the procedure required to be followed in the matter of disciplinary action against a workman other than a casual workman. The provisions of the Certified Standing Orders, relevant for the purpose of this case, are reproduced hereunder. "the competent authority shall proceed to enquire into the charges himself or appoint another officer to enquire into the charges and ask him to furnish a report by specified date, which may be extended by the competent authority for reasons to be recorded in writing. " "the competent authority or the enquiring officer, as the case may be, shall hold an enquiry after notifying the parties of the date, time and place of enquiry. The parties shall be given opportunity to lead evidence (both oral and documentary), to cross-examine withness and to file written statement, if any. The parties may call such witness at their respective expenses, as they may be permitted by the competent authority or the enquiring officer to do. In case permission is refused, the competent authority or the enquiring officer shall record his reasons for refusal. The parties may call such witness at their respective expenses, as they may be permitted by the competent authority or the enquiring officer to do. In case permission is refused, the competent authority or the enquiring officer shall record his reasons for refusal. The enquiring officer shall submit his report complete with all connected papers and along with his recommendations to the competent authority provided that the persons against whom the enquiry is held shall be given copies of the evidence both oral and documentary upon which reliance is proposed to be placed in support of the charges against him and that he shall also be allowed an opportunity, if so required by him to take assistance for a member of the executive of the union of which that workman concerned happens to be a member during the course of the enquiry when evidence is led. " "the competent authority shall consider all the materials on record and the report of the enquiring officer and shall pass necessary order : provided that if the competent authority proposes to award a punishment of dismissal, discharge or reduction in rank, he shall serve the workman with a show cause notice together with a copy of the enquiring officers report as to why the proposed punishment should not be awarded to him. The workman shall submit his show cause reply within 10 days of the date of services of the orders. On perusal of the aforesaid show cause reply of the workman, the competent authority shall pass his final orders. " 20. Paragraph 30 of the Certified standing Orders of the Board also requires that all records of proceeding shall be in the from of order sheet showing (1) the date of the orders (2) texts of orders (3)remarks showing, inter-alia, mode of service of the notice. 21. " 20. Paragraph 30 of the Certified standing Orders of the Board also requires that all records of proceeding shall be in the from of order sheet showing (1) the date of the orders (2) texts of orders (3)remarks showing, inter-alia, mode of service of the notice. 21. As noticed above, Sri A. Narayan, the Enquiry Officer along with his letter no.212 dated 11.6.1981 (Annexure-b to the supplementary Counter Affidavit) submitted his findings to the Secretary of the Board, a perusal of which shows that the witnesses, who were produced on behalf of the Board, had been cross-examined at length by the petitioner, as mantioned in paragraph 8 of the findings, and it has been further observed that in absence of the Stock Ledger and the Cardex of 7/14 G. I. Wire for the period from 1.4.1966 to June, 1966 had not been made available to him and by his letter no.18 dated 13.10.1980 he had requested the Secretary of the Board to have an enquiry made in the circumstances under which the said documents were missing from the Central Stores, Muzaffarpur which were the most important piece of evidences and had they been produced before him, it would have been possible for him to determine the guilt of the petitioner, although the conduct of the petitioner and sri Sarbdeshwar Prasad Singh and Ayod-hya Prasad Singh does not appear to be above board. He accordingly advised the authorities concerned to take all possible steps to search out the Stock Ledger and the Cardex of 7/14 G. I. Wire for the period from 1.4.1966 to June, 1966 once again and to get the entries checked along with the entries in the corresponding ledgers for the previous years as also for the subsequent period in order to find out the truth. It is evident that no definite conclusions or findings were recorded by Sri A. Narayan on the question whether or not the petitioner is guilty of misconduct for which he was charged. 22. The Respondents then entrusted sri R. C. Prasad, the then Accounts Officer vide letter no.1609 dated 19.10.1985, the task of making a thorough enquiry and to give specific observations regarding the whereabouts of the Stock Ledger and the cardex of 7/14 G. I. Wire for the period from 1.4.1966 to 30.6.1966 pertaining to the central Stores, Muzaffarpur, who submitted three Reports dated 30.4.1987, 12.1.1990 and 24.2.1990. The Report dated 30.4.1987 submitted by Sri R. C. Prasad is not on record. 23. A perusal of the Report dated 12.1.1990 (Annexure-18) and the Report dated 24.2.1990 (Annexure-18/1") indicates that the enquiry conducted by Sri R. C. Prasad, Deputy Director (Accounts), Civil, was has described himself as the Enquiry officer, gave no notice of the dates fixed by him to the petitioner in the enquiry and the "report dated 12.1.1990 reveals that the Enquiry officer stated that it was a part report based on the records collected so far from the Central Stores, Muzaffarpur and the personnel examined in this regard. He pointed out that a few points are still to be examined, within a few days, and thereafter the report "would be concluded. These Reports Indicate that the enquiry was made by Sri R. C. Prasad in the absence of the petitioner, who had no notice of the dates on which the enquiry was made and the petitioner was not afforded opportunity to cross- examine the withnesses examined by Sri R. C. Prasad or to lead evidence in his defence. 24. The Report dated 24.2.1990 (An-nexure-18/1), which is in continuation of the earlier Report dated 12.1.1990 (An-nexure-18), reveals that Sri Sarbdeshwar prasad, A. C. O. S. , Electrical Division Stores, sitamarhi, Sri Suraj Prasad, Senior Storey keeper, Electrical Division Stores, Bhabhua and Sri Ayodhya Prasad Singh, A. C. O. S. , central Bihar Area Electricity Board, Patna were examined by the Enquiry Officer, Sri r. C. Prasad as well as numerous documents mentioned in the Report and he concluded that the alleged shortage of 7/14 g. I. Wire does not ultimately lead to any ad verse financial impact on the Board and the decision in the departmental proceeding pending against Sri Gaya Prasad, Senie store Keeper, who had already suffered considerable mental, agony and career setback for such a long period, deserves lenient consideration in regard to exonerating him of the charge. 25. There is no document on record to establish nor is there any averment, either in the Counter Affidavit or in the Supplementary counter Affidavit filed on behalf of the Board, that Sr R. C. Prasad had given notice to the petitioner to appear before him to cross-examine the witnesses or to lead evidence in his defence. 26. 25. There is no document on record to establish nor is there any averment, either in the Counter Affidavit or in the Supplementary counter Affidavit filed on behalf of the Board, that Sr R. C. Prasad had given notice to the petitioner to appear before him to cross-examine the witnesses or to lead evidence in his defence. 26. The conclusion, therefore, is that the enquiry conducted by Sri R. C. Prasad against the petitioner was a non-participative enquiry, and the petitioner was denied adequate opportunity to defend himself in the departmental proceeding. 27. Learned counsel for the Board contended that neither in the Writ Petition nor in the Memorandum of Appeal has it been stated by the petitioner that any prejudice has been caused on account of denial of opportunity to cross-examine the witness and to lead evidence before Sri R. C. Prasad, the Enquiry Officer, on the contrary the petitioner has asserted in the Writ Petition as well as in the Memorandum of Appeal that he had been exonerated by the enquiry Officers as Sri A. Narayan had given benefit of doubt to the petitioner and sri R. C. Prasad in his last Report dated 24.2.1990 (Annexure-18/1) recommended lenient action against the petitioner and, there fores, denial of opportunity to the petitioner does not vitiate the departmental action against the petitioner. 28. In S. L. Kapoor Vs. Jagmohan (A. I. R.1981 SC 136) their Lordships had observed that : "in our view the principles of natural justice know of no exclusionary rule dependent on whethe if would have "made any difference if natural justice had been observed. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denlal of denlal justice is unnecessary. It ill comes from a person who has denied justice that the person who has been denied justice is not prejudiced. As we said earlier where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the Court may not issue its writ to compel the observance of natural justice, not because it is not necessary to observe natural justice but because courts do not issue futile writs. _. _. . " 29. _. _. . " 29. It is not the case of the Board that the reports submitted by Sri R. C. Prasad (Annexure-18 and 18/1) were not taken into consideration by the disciplinary authority while imposing the impugned penalty. It has been asserted in the Counter affidavits and is also evident from perusal of the impugned order dated 30.4.1990 that the enquiry reports, the written statements of the proceedings and other connected materials have been taken into consideration by the disciplinary authority while imposing the impugned penalty. It has been found that in the enquiry conducted by Sri r. C. Prasad, the petitioner had no opportunity to appear or participate in the enquiry on account of the default of the Enquiry Officer in issuing notice to the petitioner and the enquiry conducted by Sri R. C. Prasad was a non participative enquiry and the reports of Sri R. C. Prasad were considered. It thus cannot be said that no prejudice had been caused to the petitioner on account of denial of opportunity to cross-examine the witnesses and lead evidence before Sri R. C. Prasad as the petitioner could have proved before the Enquiry officer that the alleged charge is not established against him and there is no defalcation or shortage in the stores, 30. The enquiry had been conducted in contravention of the provisions governing the departmental action prescribed under the Certified Standing Orders of the Board, which in clear terms obliges the Enquiry Officer to hold the enquiry only after imforming the parties about the dates, time, place of enquiry and to give an opportunity to lead evidence both oral and documentary to examine and cross-examine the witnesses and to ile written statement, if any, consequently, the penalty of recovery from the post-retirement benefits payable to the petitioner, is illegal and the impugned orders cannot be sustained. 31. Accordingly, the impugned orders contained in Office Order No.2144 dated 30.4.1990 issued by the Secretary of the board communicated vide Memo No.646 dated 19.6.1990 (Annexure-12), Memo No.1622 dated 18.9.1992 (Annexure-16), Office order No.3353 dated 30.9.1992 (Annexure-17)Memo No.3354 dated 30.9.1992 (Annexure-17/1) are quashed and the Respondents are directed to give to the petitioner notional promotion benefits, including the selection grade pay scale, and to pay all arrears including the post retirement benefits in accordance with law, within a period of three months from today. 32. 32. In the result, the writ petition is allowed. No order as to costs. Aftab Alam, J.- I agree.