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2006 DIGILAW 370 (ORI)

Suryakanta Das v. Konark Television Ltd.

2006-05-10

A.K.SAMANTARAY, B.P.DAS

body2006
JUDGMENT A. K. SAMANTARAY, J. : In this writ petition under Article 226 of the Constitution of India, the petitioner above named has challenged the order of his termination from service passed on 15th March, 1996 under Annexure-15, the enquiry report in a departmental enquiry dated 23.6.1995 under Annexure-9 and the order of rejection of his appeal against the order of termination under Annexure-17 and has come with a prayer to quash the same on the ground that the charges levelled against him are totally baseless and without any material on record, the Enquiry Offi¬cer’s finding under Annexure-9 and the order passed by the Disci¬plinary Authority terminating his services is neither logical nor legal. 2. The background of facts compelling the petitioner to file this writ petition is stated as follows :- The petitioner joined the Konark Television Ltd. (hereinafter referred to as the ‘Company’) as a Trained Mechanic in the year 1978 and he was promoted to the post of Technical Officer in the year 1990. While functioning as such, he was transferred and posted in April, 1991 at Berhampur Sale Center and was directed to look after the promotion of sale in addition to his posting as Technical Officer and he continued there from April, 1991 to March, 1992. Thereafter, he was transferred to Jeypore as Technical Officer and in January, 1993 while he was functioning as such at Jeypore he was charge-sheeted for misap¬propriation of the Company’s cash amounting to Rs.40,243.71 during his tenure at Berhampur. A proceeding was initiated against him and three others, namely, Sri Dwijabar Bhuyan and Sri Kamaraj Biswal, who were is predecessor and successor respective¬ly, and against Sri M.P. Hentalia who had worked as Junior As¬sistant in-charge of collection and deposit during the tenure of the petitioner and other two Technical Officers, by the Managing Director, Konark Television Ltd. (O.P. No.2). The particular of the charges was served on the petitioner and he was called upon to file his written statement of defence within seven days. The particular of the charges was served on the petitioner and he was called upon to file his written statement of defence within seven days. In the said written statement, the petitioner submitted that the collection of cash and the deposit of the same were independently handled by the Junior Assistant, Sri Hentalia and the petitioner was merely signing the Bill Books and the monthly statement including the monthly cash scroll, money receipts and the compe¬tent bills were regularly sent to the Finance Department of the Head office for verification and during his tenure at Berhampur as Technical Officer there was never any intimation to the peti¬tioner regarding any discrepancy in the financial matter. He also stated in his show cause he was engaged in the promotion of sales as well as after sale service in the District of Ganjam, Phulbani and Koraput and there was no specific order to him from the Head Office to maintain the cash receipts, which was the sole job of the Junior Assistant, Sri Hentalia. He further stated therein that there was a short deposit of Rs.24,912.71 and not the amount of Rs.40,243.71 and the expenditure for the Service Centre for the month of January, 1992 to March, 1992 was made from the collection money as per the instruction of the Finance Manager and the vouchers for the said amount spent towards maintenance of the said Service Center was duly deposited in the Accounts Sec¬tion of the Head Office. He specifically mentioned the Jr. As¬sistant, Sri Hentalia was fully responsible for the short deposit and he had absolutely no role to play in the matter. 3. After submission of his show cause, O.P. No.2 appointed O.P. No.3, the Manager (SCD) as Enquiry Officer, vide Annexure-3 on 27.2.1993 and the Enquiry Officer, and vide Annexure-4 fixed the enquiry to 17.3.1993. Subsequently, Sri M. Kumar, Manager (Material) (O.P. No.4) was appointed as Enquiry Officer to en¬quire into the charges against the petitioner and he submitted the enquiry report (Annexure-9), wherein he recorded the follow¬ing findings: “From the enquiry my inference is :- (i) Mr. M. P. Hentalia is responsible for the short deposit since he was handling the Service Accounts, (ii) Mr. S.K. Das is also responsible for the short deposit as he was the officer in-charge of the depot, (iii) As stated by Mr. M. P. Hentalia is responsible for the short deposit since he was handling the Service Accounts, (ii) Mr. S.K. Das is also responsible for the short deposit as he was the officer in-charge of the depot, (iii) As stated by Mr. Das, accounts deptt, could not be able to find any fault with the Sales Account person at Berhampur and so Mr. M. P. Hentalia might have played mischief, (iv) Accounts Deptt. should verify the statement submitted by the Service Center and inform immediately about any discrepan¬cies.” 4. Basing on the enquiry report the Disciplinary Authori¬ty, i.e., the Managing Director of the Company (O.P. No.2) issued notice to show cause annexing the enquiry report and the peti¬tioner submitted his show cause, vide Annexure-10 after which vide Annexure-15 O.P. No.2 on 15.3.1996 passed the impugned order which is as follows :- “Being the Disciplinary Authority, I hereby, dispose of the proceeding case by passing the following orders :- (i) Sri Suryakanta Das, Technical Officer is hereby terminated from service with immediate effect i.e. from the date of issue of this order. One month’s salary will be paid to Sri Das in lieu of one-month notice. (ii) Gratuity to be injuncted and adjusted against the misappropriated amount. (iii) No arrears will be disbursed to Sri Das till the final recovery and if required the same may be adjusted against the misappropriated amount.” It is mentioned in the order of the Disciplinary Authority that it is established that Sri Das has misappropriated a sum of Rs.40,798.46 during his tenure at Berhampur Service Center. 5. Against this order of termination fixing responsibility on the petitioner, the petitioner preferred an appeal to the Chairman of the Company (O.P. No.1) which was rejected on the technical ground of limitation, vide Annexure-17. 6. A counter affidavit has been filed by the opposite parties through Sri Nilamadhab Sahoo, Dy. 5. Against this order of termination fixing responsibility on the petitioner, the petitioner preferred an appeal to the Chairman of the Company (O.P. No.1) which was rejected on the technical ground of limitation, vide Annexure-17. 6. A counter affidavit has been filed by the opposite parties through Sri Nilamadhab Sahoo, Dy. Manager (Legal) of the Company, wherein it is stated that the petitioner during his incumbency as Technical Officer in the Berhampur Service Center embezzled an amount of Rs.40,243.71 as against the collection of Rs.2,01,687.81 and deposited only an amount of Rs.1,61,444.10 and another amount of Rs.554.75 was also embezzled which was collect¬ed from customers and was not reflected in the Books of Accounts maintained by the petitioner and as such, the petitioner violated Rules 5(1) and 5(5) of the Conduct and Discipline and Appeal Rules, 1988 and a proceeding was initiated and enquiry was con¬ducted and the petitioner was given all opportunity to defend himself. As the Enquiry Officer after completion of the enquiry found him guilty, consequently the order of termination of serv¬ice was served on the petitioner. In the counter affidavit, the same fact of petitioner’s handling the cash and accounts books has been reiterated and there is absolutely no whisper in the said counter affidavit as to the basis of fixing the responsibil¬ity on the petitioner who was a technical officer and was in overall charge of the sales and service center whereas Jr. As¬sistant, Sri M.P. Hentalia was the actual person who was handling the cash and accounts matter and was responsible for the deposit of the amount collected. It is not denied that the petitioner as technical officer and being in charge of promotion of sales and after sale service was extensively touring in different districts under his charge and was not handling the cash. The counter affidavit is totally silent about the averments of the petitioner in his writ petition as well as the defence taken by him during the enquiry that he was incurring expenditure in respect of the maintenance of the service center only and after obtaining clear¬ance from the Head Office he had incurred some advance expendi¬ture towards the maintenance of the service center for which he had accounted for by submitting vouchers to the Head Office. 7. We have heard the learned counsel for the petitioner and the learned counsel for the opposite parties at length. 7. We have heard the learned counsel for the petitioner and the learned counsel for the opposite parties at length. Learned counsel for the petitioner took us through the annexures filed by the petitioner and submitted that the averment of the petitioner in paragraph 11 of the writ petition that no evidence was recorded by the Enquiry Officer on the date of the enquiry which was attended not only by the petitioner but also Sri Dwija¬bar Bhuyan and Sri Kamraj Biswal and the Jr. Assistant Hentalia who was in charge of the accounts and responsible for the short deposit did not attend the enquiry and there was only a joint discussion in the chambers of the Enquiry Officer on the basis of which he has recorded the finding as per Annexure-9 which has not been denied by the opposite parties. He also vehemently argued that on the face of this averment it was duty of the opposite parties to produce the evidence recorded during the enquiry so as to substantiate the charge and the finding recorded by the En¬quiry Officer pinpointing the responsibility on the petitioner. Taking us through the enquiry report (Annexure-9), he submitted that the Enquiry Officer’s finding is based on his inference and not on proof on the basis of the evidence and no document has been produced by the opposite parties to show that it is the petitioner and the petitioner only who is responsible for the alleged mismanagement of funds and misappropriation. Reiterating the petitioner’s consistent stand in the writ petition as well as in his show cause filed in the proceeding he submitted that the management had also charge-sheeted the Jr. Assistant Sri Henta¬lia, who was also noticed to attend the enquiry on 5.5.1993 at 2.30 P.M. But admittedly, he did not attend the enquiry and it was submitted at the Bar that he resigned and left. As we find, there is absolutely no proof of any misappropriation and the basis of finding that the petitioner is responsible for the so-called misappropriation is on the inference of the Enquiry Offi¬cer as because he was in overall charge of the sale center at Berhampur during the relevant period although he was not entrust¬ed with charge of collection and maintenance of cash and accounts books. Besides, the stand of the petitioner that at no point of time the accounts Section of the Head Office had ever indicated any discrepancy in the matter of finance although every month the finance statement was being submitted to it. This fact is further fortified from enquiry report (Annexure-9) where the Enquiry Officer has recorded that “Accounts Department should verify the statement submitted by the service center and inform immediately about any discrepancies”. This observation of the Enquiry Officer is sufficient to show that without any basis and without any concrete material at hand the charges against the petitioner were levelled and when pointed out the Enquiry Officer directed the Accounts Department to verify and intimate it immediately. What followed thereafter is not known and no follow up action in that regard appears to have been taken by the Enquiry Officer. Learned counsel for the petitioner submitted that in the aforementioned premises, the Enquiry Officer was absolutely in dark about the actual position and nobody from the Accounts Department was present at the so-called enquiry during its conduct by the En¬quiry Officer so as to substantiate the charge of the alleged misappropriation as against the petitioner. He submitted that when it is the definite stand of the petitioner that he was not handling the cash or the accounts books and not responsible for depositing the collected cash in the Bank and that it was en¬trusted to the Jr. Assistant and he as a Technical Officer was not in-charge of the cash and accounts, which has not been con¬tradicted even though a piece of document from the side of the opposite parties, the fixing of responsibility and finding him liable and ultimately terminating his service on that account is liable to be quashed. We find sufficient force in the submission of learned counsel for the petitioner and we have least hesita¬tion to record here that the finding of the Enquiry Officer against the petitioner is without any material on record and totally illogical. Learned counsel for the opposite parties except reiterating the stand taken in the counter affidavit about which we have referred to earlier could not enlighten us on the actual fact circumstances so as to uphold the stand of the oppo¬site parties in finding the petitioner responsible and terminat¬ing his services. 8. Learned counsel for the opposite parties except reiterating the stand taken in the counter affidavit about which we have referred to earlier could not enlighten us on the actual fact circumstances so as to uphold the stand of the oppo¬site parties in finding the petitioner responsible and terminat¬ing his services. 8. Learned counsel for the petitioner with reference to the judgment of the Apex Court, reported in 2005 AIR SCW 95 (Damoh Pana Sagar Rural Regional Bank and another v. Munna Lal Jain) vehemently urged that law is well settled 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 sense that it was in defiance of logic or moral standards. 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. He argued that in the instant case from the very inception of issuance of show cause up to the point of submission of appeal memorandum the petitioner has put forth the same defence that he has neither in charge of handling the cash nor was he responsible for maintaining the cash account or he was to deposit the same in the Bank. Not a single document has been annexed to the counter affidavit showing the duty assigned to the petitioner, who admittedly was a Technical Officer and was to promote the sale of Konark brand Television in three districts and attend to after sale service. The assertion of the petitioner that he was not at all concerned with the accounts and cash of the sale center, in our opinion, is not only genuine but also bona fide and true. When a person is not at all concerned with the dealing of the cash and accounts, no inference could be drawn against him nor he could on the basis of the inference drawn be held guilty and the major punishment of termination of service be inflicted. In the absence of any scope on the part of the peti¬tioner to handle any cash and accounts, we fail to understand as to how he could be pinpointed and held guilty of the charge of misappropriation of funds. 9. In the absence of any scope on the part of the peti¬tioner to handle any cash and accounts, we fail to understand as to how he could be pinpointed and held guilty of the charge of misappropriation of funds. 9. In our view, the finding that the petitioner is guilty of charge of misappropriation is absolutely bereft of any logic and is totally irrational. We fail to understand how O.P. No.2, he Managing Director and Disciplinary Authority could concur with the report of the Enquiry Officer, which we have already pointed out, is based on no evidence and we fail to comprehend as to how O.P. No.2 could inflict the punishment of termination of service on the petitioner. We are shocked and surprised to find the way the petitioner has been entangled in the proceeding and the en¬quiry and the way he has been penalized for no proved delinquency and has been thrown out being stigmatized. On slight application of judicial mind either by the Enquiry Officer or by the Disci¬plinary Authority things would have been different and the peti¬tioner would not have been thrown out of the job. 10. In view of our foregoing discussion, we have absolutely no option than to allow the writ petition and consequently we quash the enquiry report (Annexure-9), the order of the Discipli¬nary Authority (Annexure-15) terminating the services of the petitioner as well as the order of recovery of the so-called misappropriated amount from the petitioner. 11. We further direct that the petitioner be reinstated in service with all service benefits from the date of his termina¬tion and all pecuniary entitlement both current and arrears of the petitioner be computed and paid to him and the entire exer¬cise be completed within a period of three months from the date of receipt of this order. The order be communicated to opposite party Nos. 1 and 2 at the cost of the petitioner. However, we make no order as to costs. 12. The writ petition is disposed of accordingly. B. P. DAS, J. I agree. Petition disposed of.