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2004 DIGILAW 146 (GAU)

Khagendra Nath Talukdar v. State of Assam

2004-02-27

BIPLAB KUMAR SHARMA

body2004
JUDGMENT B.K. Sharma, J. 1. The petitioner while was serving as Junior Engineer under the respondents was issued with a charge sheet dated 8.4.86. The charges framed against the petitioner are as follows: "1. That while you worked as sectional officer of the store under the S.D.O., P.W.D., M.C.C. Sub-Division No. 1 Gauhati various sizes of iron materials worth of Rs. 1,07,045.80 (Rupees one lakh seven thousand and forty five and paisa eighty) only was found short the cause of the shortage of storage materials is due to you negligence in Govt. duty and you have intentionally misused the Govt. property. So you are charged for the dereliction of Govt. duty and misused the Govt. property. 2. While you were in-charge of the store, the losses with Rs 1,07,045.80 occur during your incumbency, when the physical verification done by E.E.M.C.C. Division which you have not reported to the S.D.O. or E.E.M.C.C. Division. You are therefore charged for concealment of fact with motive behind and misappropriation of Govt. property." 2. In response to the said charge sheet, the petitioner submitted his written statement in defense as was asked for denying the charges leveled against him. According to the explanation furnished by the petitioner, the materials in question were stored in open space in road side without any protective barricade. The rusting of the materials during the period of 10/12 years also caused loss in weight of the materials as explained by the petitioner in his written statement. Referring to an order dated 27.7.71 permitting 21/2 percent weight tolerance, it was explained by the petitioner that he was entitled to the benefit of the said order. Thus there was total denial on the part of the petitioner relating to the charges leveled against him. 3. Thereafter a regular departmental proceeding was conducted against the petitioner and by an order dated 23.2.89 the petitioner was imposed with the penalty of recovery of an amount of Rs. 1,07,045.80 p in suitable installments from the salary of the petitioner. The petitioner, in reference to his earlier representation dated 27.4.89 made a further prayer by Annexure-D representation to furnish him with the copy of the enquiry report. However, the same was not furnished to him. 1,07,045.80 p in suitable installments from the salary of the petitioner. The petitioner, in reference to his earlier representation dated 27.4.89 made a further prayer by Annexure-D representation to furnish him with the copy of the enquiry report. However, the same was not furnished to him. He preferred a departmental appeal on 23.5.89 taking the specific plea of non-furnishing of the enquiry report and also about the permissible weight tolerance to the extent of 21/2 percent By an order dated 27.7.90 the departmental appeal preferred by the petitioner was disposed of with the following findings. "On careful examination of the case, it is found that the stock materials (iron rods) were stored since 1973-74 in different places, even in a road side in a scattered way for 8/9 years without proper protection as stated by Shri K.N. Talukdar, Junior Engr. Sectional Officer of Store, M.C.C. Divn. So there was open chance of loss and less in weight due to rusting etc, for long storage in open space under sub and rains, Penalty for recovery of Rs. 1,07,045.80 from Shri Talukdar for the calculated loss appears to be harsh and heavy." With the aforesaid findings, the order of penalty was modified ordering recovery in suitable installments from the pay bill of the petitioner on account of loss of store materials allegedly sustained by the department at the issue rate of July 1983 (8.099 MT) and at the issue rate of December 1984 (1.801 MT). 4. Being aggrieved by the aforesaid modified order of penalty, the petitioner preferred an appeal before the Assam Administrative Tribunal which was registered and numbered as Case No. 117 ATA/90. The appeal was disposed of by an order dated 2.2.91 holding the aforesaid appellate order to be a non-speaking one and on that basis the matter was remanded back to the Appellate Authority for disposal of the departmental appeal afresh through a speaking order. The operative part of the order of the Tribunal is quoted below: "It is seen that the impugned departmental appellate order dated 27.7.90 is not a speaking one, and more particularly does not give any reasons for rejecting the appellants grounds of appeal, in general, and more particularly the storage loss claimed by him on ground of rusting, etc. The operative part of the order of the Tribunal is quoted below: "It is seen that the impugned departmental appellate order dated 27.7.90 is not a speaking one, and more particularly does not give any reasons for rejecting the appellants grounds of appeal, in general, and more particularly the storage loss claimed by him on ground of rusting, etc. due to espouse (which incidentally, appears to have been accepted, at least partly, in the impugned appellate order itself) and on the basis of the CE's circular dt. 27.7.71 allowing 2 1/2 weight tolerance, not does it details the basis on which the loss attributable to the appellant is quantified as 1.801 MT. For this reason we set aside the impugned appellate order dt. 27.7.90 and remit the appeal to the Secy. PWD for disposal through a speaking order." 5. After the aforesaid order of the tribunal, the departmental appeal of the petitioner was once again taken up for disposal and by an order dated 6.11.93 same was disposed of sticking to the earlier order of the Appellate Authority. Once again the petitioner was held responsible for the loss of 8.099 MT and 1.801 MT of iron rods at the issue rates of July, 1983 and December, 1984 respectively. Being aggrieved the petitioner has initiated the present writ proceeding making a prayer for quashing and setting aside the order of penalty dated 23.2.89 passed by the Disciplinary Authority and the two appellate orders dated 27.7.90 and 6.11.93. 6. I have heard the learned counsel for the petitioner Mr. L.R. Dutta and Mr. K.C. Mahanta, learned Sr. Government Advocate appearing for the State respondents. The basic thrust of argument of Mr. Dutta is that the 2nd appellate order dated 6.11.93 is virtually the replica of the 1st appellate order dated 27.7.90 which was set aside by the Tribunal by its order dated 2.2.91. The various aspects of the matter as enumerated in the order of the Tribunal which were required to be taken into account having not been considered by the appellate authority, the said order dated 6.11.93 is not sustainable and bad in law, Mr. Dutta submitted. The various aspects of the matter as enumerated in the order of the Tribunal which were required to be taken into account having not been considered by the appellate authority, the said order dated 6.11.93 is not sustainable and bad in law, Mr. Dutta submitted. He further submitted that the various grounds urged in the departmental appeal including the ground of non-furnishing the copy of the enquiry report as required under Rule 9(A) of Assam Services (Discipline & Appeal) Rules, 1964 having not been dealt with by the Appellate Authority, the said order is liable to be set aside. On the other hand Mr. K.C. Mahanta, learned Sr. Government Advocate submitted that the Appellate order does not suffer from any infirmity and the petitioner having been found guilty of the shortage of materials, the order of penalty has been rightly imposed. 7. I have considered the submissions made by the learned counsel for the parties and the materials on records. The respondents have not chosen to file any affidavit in the name of records they have addressed a letter dated 31.10.2003 to the Assistant Registrar of this Court forwarding the purported records of the case. The said records contained only the order of penalty imposed by the Disciplinary Authority by order dated 23.2.89 and nothing else. Thus this court is not in a position to appreciate as to how and in what manner the enquiry was conducted and what were the conclusions and findings of the Inquiry Officer. The petitioner in his departmental appeal urged many grounds such as not giving any opportunity to lead his evidence and to cross examine the witnesses of the department, non-supply of the copy of the enquiry report in spite of making prayer for the same, not taking into account the order of the department dated 27.7.71 permitting variation in the weight of store materials to the extent of 2 1/2 percent and keeping the material in open yards without any proper protection etc. The Tribunal found the 1st appellate order to be cryptic and non-speaking one and accordingly emended back the matter to the Appellate Authority for afresh consideration taking into account the grounds in the appeal. The Tribunal found the 1st appellate order to be cryptic and non-speaking one and accordingly emended back the matter to the Appellate Authority for afresh consideration taking into account the grounds in the appeal. The Appellate authority once again held the petitioner responsible for the shortage of stores (iron rods) to the extent indicted in the order and accordingly ordered for recovery of the amount at the specified rate from the salary of the petitioner. 8. In the 1st appellate order dated 27.7.90 the Appellate Authority modified the order of penalty which was imposed by the disciplinary Authority i.e. the Chief Engineer, PWD on the basis of the findings as quoted above. As per the said findings the materials (iron rods) which were stored since 1973-74 in different places even in a road side in scattered way for 8/9 years without proper protection and that there was open chance of loss of materials and loss of weight due to rusting etc. It was on that account the order of the Disciplinary Authority was modified and the loss to the tune of 8.099 MT and 11801 MT of iron rods was attributed, to the petitioner without, however, specifying anything as to how he was responsible for the same. The Tribunal while interfering with the said order recorded its reason for the same and remanded the matter back to the Appellate Authority to arrive at a decision afresh upon taking into account the factors mentioned in the order and the grounds urged in the appeal by the petitioner. The Appellate Authority once again found the petitioner responsible for the same amount of loss of store materials without, however, specifying anything as to how the petitioner was responsible for such loss. The remission allowed in favour of the petitioner is on account of the same very grounds of the materials being exposed to open air without any protection etc. as was noticed in the 1st appellate order. The penalty of recovery of Rs. 1,07,045.80 p. passed against the petitioner by the Disciplinary Authority has been held to be harsh and heavy. The remission allowed in favour of the petitioner is on account of the same very grounds of the materials being exposed to open air without any protection etc. as was noticed in the 1st appellate order. The penalty of recovery of Rs. 1,07,045.80 p. passed against the petitioner by the Disciplinary Authority has been held to be harsh and heavy. In the said order dealing with the plea of the petitioner regarding the benefit of 2 1/2 percent of weight tolerance, the Appellate Authority has held that as the order in this regard was withdrawn on 9.1.81 and the shortage was detected during 1983-84, the petitioner is not entitled to the said benefits. On the face of it such an argument on the part of the Appellate Authority is, strange and fallacious. The petitioner was charged for loss of materials without specifying anything as to when such loss had occurred. As per the charge sheet the shortage was detected upon verification carried out by the Executive Engineer on 15.7.83. Merely because the verification was carried out on 15.7.83 and the benefit of 2 1/2 percent variation in the weight of the materials as circulated by Order dated 27.7.71 was withdrawn by letter dated 9.1.81, the petitioner cannot be deprived of the said benefit of 2 1/2 percent weight tolerance. It is not the case of the respondents that the loss of materials occurred after the letter dated 9.1.81 rather the charge sheet revealed that the loss had occurred during the incumbency of the petitioner meaning thereby that the petitioner was entitled to the benefit of 2 1/2 percent weight tolerance. This aspect of the matter was not taken into account by the Appellant Authority. 9. It is the specified case of the petitioner which has also been admitted by the Appellate Authority that the materials in question were exposed to open road side yard without any barricade with the possibility of loss of materials and loss of weight due to rusting etc. Thus the entire loss or that account cannot be ruled out. On a bare perusal of the charge sheet, it is found that the petitioner was not attributed with any guilt for the said loss. It has only been stated that the materials as specified in the charge sheet were found short after verification of the stock. Thus the entire loss or that account cannot be ruled out. On a bare perusal of the charge sheet, it is found that the petitioner was not attributed with any guilt for the said loss. It has only been stated that the materials as specified in the charge sheet were found short after verification of the stock. There is no indication in the charge sheet that it was the petitioner who had caused the loss or that lie was in any way connected with the said loss of materials. Although negligence and willful action towards causing loss of government property has been alleged against the petitioner in the said charge sheet, nothing has been attributed to the petitioner to the effect that it was he and he alone whose conduct led to the loss of the materials in question. The Appellate Authority having come to the finding that there was chances of loss of materials and loss of weight etc. due to keeping the materials in a scattered condition in different places without any proper protection for 8/9 years, could not have ordered for recovery of the amount pertaining to the loss of the quantified materials at the issue rate of the particular year and that too without assigning any reasons. 10. Apart from the above, the 2nd appellate order is virtually the replica if the 1st appellate order. The 1st appellate order has already been quoted above. The effective of the 2nd appellate is quoted below : "On careful examination of the case, it is found that the stock materials (iron rods) were stored since 1973-74 in different places, even in a road side in a scattered way for 8/9 years without proper protection as stated by Shri K.N. Talukdar, Junior Engineer. S.W Store, M.C.C. Divn. So, there was open chance of loss and less in weight due to rusting etc, for long storage in pen space under sun and rains. Penalty for recovery of Rs. 1,07,045.80 from Shi Talukdar for that calculated loss appears to be harsh and heavy. The Chief Engineer (Building) states that formal proceedings were drawn against the officer for which the Executive Engineer's letter dated 1.2.86 ordering the recovery was withdrawn. This has beer accepted," "After due consideration it is ordered that the penalty imposed by the Chief Engineer, P.W.D. (Bldg.) Assam vide his N. CE/BLD/CON/60/86/62, dtd. The Chief Engineer (Building) states that formal proceedings were drawn against the officer for which the Executive Engineer's letter dated 1.2.86 ordering the recovery was withdrawn. This has beer accepted," "After due consideration it is ordered that the penalty imposed by the Chief Engineer, P.W.D. (Bldg.) Assam vide his N. CE/BLD/CON/60/86/62, dtd. 23rd Feb/1989 be modified as below :- The amount for loss of 8.099 MT (iron rods) and 1.801 MT(iron rods), be recovered from Shri K.N. Talukdar, Jr. Engineer in suitable installments from his pay bill (all deduction should not exceed half of the basis pay) at the issue rate of July, 1983 of the division and December, 1984 of the Division respectively detailed below :- "Balance amount, if any are to be adjusted with his D.C.R.G., G.P.F. and such other pension benefits as per rules." 11. I have also gone through the order of the Disciplinary Authority by which the penalty of recovery from salary for an amount of Rs. 1,07,045.80 p. was directed. Nothing has been discussed in the said order dated 23.2.89. On the face of it the said order is cryptic and non-speaking. The findings recorded by the Inquiry Officer has not been reflected either by the Disciplinary Authority or by the Appellate Authority. Apart from this the petitioner was also not supplied with the copy of the enquiry report even after passing the order of penalty. Rule 9 A of the aforesaid Rules of 1964 requires the Disciplinary Authority to furnish a copy of the report of the Inquiring Authority along with the order of penalty to be communicated to the petitioner, Such a provision has been made in the said Rules enabling the delinquent to prefer an effective appeal. However, in spite of prayer made by the petitioner he was not furnished with the copy of the enquiry report. Although the learned counsel for the petitioner argued that he was entitled to have a copy of the enquiry report even before passing the order of penalty by the Disciplinary Authority on the basis of the law laid down in Md. Ramjan Khan's case as reported in, the said judgment holding that the delinquent is entitled to a copy of the enquiry report enabling him to make an effective representation before imposition of penalty has got only prospective application. Ramjan Khan's case as reported in, the said judgment holding that the delinquent is entitled to a copy of the enquiry report enabling him to make an effective representation before imposition of penalty has got only prospective application. The judgment in the said case was delivered on 20.11.90 but in the instant case the petitioner was imposed with the penalty by the Disciplinary Authority on 23.2.89. Thus the said judgment has got no application to the case of the petitioner. Nonetheless, the petitioner was entitled to have a copy of the enquiry report as per the provisions of Rule 9 A of the aforesaid Rules. The admitted position is that the petitioner was not furnished with the copy of the enquiry report enabling him to make an effective appeal. This point was specifically raised by the petitioner in his appeal and I find that the Appellate Authority has not dealt with that aspect of the matter while passing the order dated 6.11.93. 12. The petitioner in his appeal had also urged many other grounds touching the very propriety and procedure of the enquiry proceeding. Unfortunately the Appellate Authority did not deal with the same while passing the order dated 6.11.93. In absence of any affidavit and production of any record and not even the enquiry report, the contentions raised in the departmental appeal go unrefined. However, even leaving aside the question of procedural irregularity in the enquiry proceeding, the writ petition deserves to be allowed only on the short ground as noticed above that the materials in question were kept in open condition for long 8/9 years with chances of loss of materials and loss of weight. Coupled with this the petitioner was also entitled to the benefit of the weight tolerance to the extent of 21/2 percent No misconduct has been attributed to the petitioner in the charge sheet and yet the loss as was detected in verification report of 1983 was attributed to the petitioner without any specification as to how the petitioner was responsible for such loss. Thus the findings recorded are utterly perverse and without any basis. 13. During the course of hearing the learned counsel appearing for the petitioner was asked to quantify the amount for which the petitioner was made liable in pursuance of the modified order of penalty. Thus the findings recorded are utterly perverse and without any basis. 13. During the course of hearing the learned counsel appearing for the petitioner was asked to quantify the amount for which the petitioner was made liable in pursuance of the modified order of penalty. Upon instructions he submitted that the total amount on account of the loss of material attributed to the petitioner was for Rs. 53,572.50. Apart from making recovery of the said amount from the salary and final retirement dues of the petitioner, as per the submission made by the learned counsel for the petitioner he has not been paid any retirement benefits except making payment on account of GIS and GPF. The petitioner has retired from service on attaining the age of superannuation with effect from 31.8.97. It is really unfortunate that even after expiry of about 7 years he has not been paid his pensionary benefits. 14. In view of the aforesaid discussion and findings recorded, I have not hesitation to set aside and quash the impugned order dated 6.11.93 and the order of the Disciplinary Authority passed on 23.2.89 (Annexure-H and C respectively). The petitioner shall be entitled to get back the amount already recovered from him. He shall also be paid all outstanding pensioner benefits including monthly pension as may be admissible to him under the Rules. The refund of the recovered amount and payment of all outstanding dues including arrear monthly pension shall be released to the petitioner within two months from the date of receipt of the certified copy of this judgment and order. 15. Writ petition stands allowed. No order as to cost. Petition allowed