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2010 DIGILAW 15 (GAU)

Arun Kumar Bakshi v. Hindustan Paper Corporation

2010-01-08

HRISHIKESH ROY, RANJAN GOGOI

body2010
JUDGMENT Ranjan Gogoi, J. 1. Heard Sri D. Bagchi, Learned Counsel for the appellant (writ petitioner) and Sri S.N. Sarma, Learned Senior Counsel appearing for the respondents. 2. This appeal is directed against the order dated 11.4.2006 passed by a learned Single Judge of this Court by which the writ petition filed by the appellant challenging the punishment of removal from service imposed on him has been dismissed. The aforesaid punishment, it may be noticed, was so imposed after holding a full-fledged departmental enquiry in which the charges levelled against the appellant by charge memo dated 24.6.2002 were found to be proved. 3. We have read the elaborate order dated 11.4.2006 passed by the learned Single Judge which not only contains a comprehensive description of the relevant facts but also the contentions advanced before the learned Single Judge and the findings recorded therein on each of such contentions. The very elaborate description of the relevant facts available in the order of the learned Single Judge would make it unnecessary to repeat and reiterate the same save and except to extract herein below the details of the charge(s) levelled against the appellant by Charge Memo doted 24.6.2002: It is alleged that Shri A.K. Bakshi, DM (Forest) directed the staff at Lailapur Check Gate Office and other Inter State Gate Office staff to make fake entries in the Register maintained at Lailapur Check Gate Office in connivance with the Bamboo supplier M/s. D. Bhattacharjee with a mala fide intention facilitating the said supplier to camouflage Barak Valley Bamboo as Mizoram Bamboo, resulting in unlawful gain to the supplier. It is also alleged that Shri A.K. Bakshi with an ulterior motive abetted the staff to endorse blank supplier Challan affixing seal and signature, leaving blanks space for truck No. and other entry details to be filled up by the aforesaid bamboo suppliers) at his/their convenience. He had also abetted the staff to make entry of truck Nos. in gate entry register in order to numerically match with number of blank Challan issued to the supplier, should the matter be subjected to official scrutiny. Subsequently most of trucks, whose numbers were in the entry register of the Check Gate were not received at the mill site. He had also abetted the staff to make entry of truck Nos. in gate entry register in order to numerically match with number of blank Challan issued to the supplier, should the matter be subjected to official scrutiny. Subsequently most of trucks, whose numbers were in the entry register of the Check Gate were not received at the mill site. Thus, Shri Bakshi had aided and abetted the bamboo supplier in collecting bamboo from sources other than the State of Mizoram with the clear intention of illegally benefiting the supplier. Also, Shri Bakshi being in-charge had failed in his duty to counter check the truck passing through the gate with the arrival at the mill site. Besides the aforesaid allegation, Shri A.K. Bakshi, DM (Forest) accompanying the following officials of CPM (Place of posting of each accompanying officials mentioned below against their name) visited Lailapur Check Gate Office on 7.7.2002 and in a clandestine manner organized unauthorized change of 3 Nos. of original Entry Registers containing records of 3(three) bamboo suppliers (i) M/s. J.M. Sahja, (ii) Deep Enterprise, (iii) J. Bothra and also managed to make fresh entries in 3(three) new Registers incorporating new particulars on 7.4.2002 suppressing the fact of such destruction of original records with a mala fide intention. 1. Shri Ashok Kr. Roy Posted at Taliamma (Tripura) around 300 k.m. from Lailapur 2. Shri Joy Gopal Debnath Posted at Fulertal around 80 k.m. from Lailapur. 3. Shri Biswajyoti Deb Posted at Bhairabi Mizoram around 80 k.m. from Lailapur. 4. Shri Ranjan Roy Posted at Biarabi (Mizoram around 80 k.m. from, Lailapur) Shri A.K. Bakshi DM (Forest) has thereby failed to maintain absolute integrity and devotion to his duty as envisaged in Rule 4(a)(i) and 4(a)(ii) of the CDA Rules. By showing utter dishonesty in connection with the business of the Corporation, Shri A.K. Bakshi acted in a manner prejudicial to the interest of the Corporation. Shri Bakshi is, therefore, allegedly guilty for committing the following misconducts under HPC CDA Rules. 1. Fraud dishonesty……. 5(i) 2. Acting in a manner prejudice to the Interest of the Corporation…….. 5(vi) 3. Commission of any act subversive of discipline of good behaviour……. 5(xxi) 4. Abetment 5(xxii) 5. Wilful defacement of official document…… 5(xxxii) 6. Suppression of facts……. 5(xxxvi) 7. Wilful acts or omission causing damage of loss to the corpn…. 5(xxxvii) 4. 1. Fraud dishonesty……. 5(i) 2. Acting in a manner prejudice to the Interest of the Corporation…….. 5(vi) 3. Commission of any act subversive of discipline of good behaviour……. 5(xxi) 4. Abetment 5(xxii) 5. Wilful defacement of official document…… 5(xxxii) 6. Suppression of facts……. 5(xxxvi) 7. Wilful acts or omission causing damage of loss to the corpn…. 5(xxxvii) 4. The appellant/petitioner submitted his reply against the charges levelled which not being found to be satisfactory, an enquiry was held in respect thereof. The appellant/petitioner participated in the enquiry in the course of which due opportunity was afforded to him to contest the proceeding not only by cross-examining the witnesses relied upon in support of the charges but also to adduce evidence, if any, on his behalf. Specifically, it may be noted in this regard that the statements of five persons made in course of a preliminary enquiry were relied upon by the Enquiry Officer by giving opportunity to the appellant to cross-examine the said witnesses, if it was so desired. However, the appellant declined to cross-examine any of the said persons. Thereafter, at the conclusion of the enquiry, report thereof was submitted to the Disciplinary Authority, copy of which was, made available to the appellant so as to enable him to represent against the findings of the enquiry. On consideration of the representation submitted by the appellant against the report of the Enquiry Officer, the Disciplinary Authority thought it proper to impose the punishment of removal from service on the appellant. 5. A reading of the order of the learned Single Judge further goes to show that defect(s) of procedure in the enquiry held thereby affecting the appellant's right of fair opportunity was sought to be contended by pointing out specific provisions of the Rules/Regulations in force. The learned Single Judge, for reasons that we consider weighty and sufficient, had rejected all such contentions. Though, specifically, no such grievance with regard to defect(s) in the enquiry has been raised before us, our views with regard to the conduct of the enquiry would adequately take care of the aforesaid aspect of the matter. 6. What has been urged before us in the main is that in respect of the same charges a Criminal Case was registered on the basis of a First Information Report filed which was investigated by the Central Bureau of Investigation (CBI). 6. What has been urged before us in the main is that in respect of the same charges a Criminal Case was registered on the basis of a First Information Report filed which was investigated by the Central Bureau of Investigation (CBI). According to the appellant the aforesaid Criminal Case ended in favour of the appellant on account of submission of final report by the CBI on 16.12.2005 clearly exonerating the appellant from the charges levelled in the FIR in question. As the Criminal Case against the appellant ended in the above manner, it is the contention of the Learned Counsel for the appellant that the punishment imposed in the. Departmental Proceeding will have no legs to stand and, therefore, the same should be appropriately interfered with by this Court. 7. In this regard it has to be noticed that on account of the aforesaid facts, by our earlier order dated 5.6.2009, we had permitted the appellant to file a representation afresh against the penalty imposed on him. The appellant hold filed such a representation, which has been rejected by an order dated 4.9.2009 of the competent authority of the respondent Hindustan Paper Corporation. As the aforesaid order dated 4.9.2009 is a sequel to the court's order dated 5.6.2009, the said order dated 4.9.2009 will, naturally, be governed by such conclusion that will be eventually recorded in the present order. 8. To appreciate the arguments advanced on behalf of the appellant, we have elaborately considered the charges levelled against the petitioner/appellant by the Charge Memo dated 24.6.2002, which has been extracted above and also the findings recorded by the CBI in the Final Report dated 16.12.2005 which has been placed before us. This was required to be done in view of the settled position of law that if a criminal case on the same charges as in the Departmental Proceedings ends favourably, the basis of the Departmental Proceeding will cease to exist and the punishment imposed will have to be struck down. 9. The charge against the petitioner/appellant in the Departmental Proceeding is that the appellant had acted in connivance with a bamboo suppler, one Sri D. Bhattacharjee so as to facilitate the supplier to camouflage Barak Valley Bamboo supplied to the Paper Mill of the respondent at Panchgram as Mizoram Bamboo, thereby resulting in unlawful gain to the supplier. 9. The charge against the petitioner/appellant in the Departmental Proceeding is that the appellant had acted in connivance with a bamboo suppler, one Sri D. Bhattacharjee so as to facilitate the supplier to camouflage Barak Valley Bamboo supplied to the Paper Mill of the respondent at Panchgram as Mizoram Bamboo, thereby resulting in unlawful gain to the supplier. Incidental to the aforesaid charge there was a further allegation that the appellant had abetted his staff to endorse blank delivery challans affixing seal and signature but leaving blank space(s) to be filled up by the supplier on a later date. Another fact that was alleged in support of the above charge is that the appellant had abetted his staff to make entry of truck nos in the registers in the Check Gate so that the entry in such registers matches with the blank challans issued to the supplier. This, it was alleged, was done to camouflage the records in the event of any official scrutiny of the same. Under the aforesaid charge, it was further mentioned that most of the trucks whose numbers were entered in the registers at the Check Gates did not report at the mill site. 10. The second charge against the appellant was that he along with other officials had visited the Lailapur Check Gate on 7.4.2002 and in a clandestine manner had organized unauthorized change of 3 Nos. of original Entry Registers containing the records of 3(three) bamboo suppliers, i.e., (i) M/s. J.M. Saha, (ii) Deep Enterprise, and (iii) J Bothra There was a further allegation that fresh entries in 3(three) new Registers incorporating new particulars on 7.4.2002 were made destroying the original records. 11. The FIR lodged against the appellant and other persons on the basis of which the CBI had investigated the case, in respect of which Final Report dated 16.12.2005 was submitted, contained allegations of wrongful gain and wrongful loss on facts and events similar to those contained in the Charge Memo, dated 24.6.2002. Allegations of preparation of bogus registers and manipulation of records were specifically mentioned in the FIR filed. However, the Final Report submitted by the CBI indicates that no specific investigation with regard to the appellant's role in facilitating issuance of blank delivery challans or fictitious entries of vehicle numbers in the registers at the Check Gates were investigated by the CBI. However, the Final Report submitted by the CBI indicates that no specific investigation with regard to the appellant's role in facilitating issuance of blank delivery challans or fictitious entries of vehicle numbers in the registers at the Check Gates were investigated by the CBI. Similarly, facts pertaining to destruction of the records of the Lailapur Check Gate and unauthorized changes in three numbers of original registers by making fresh entries in three new registers were not carried out by the CBI. The exoneration of the appellant by the CBI proceeded on the basis that the concerned bamboo suppliers had executed agreement with permit holders of Mizoram for supply of bamboo to the Hindustan Paper Corporation; payment of royalty and movement of bamboo under transit passes issued by the Government of Mizoram and delivery challans issued by the suppliers. The CBI also took into account the fact that such movement was monitored at the inter-State Chock Gate in which process the staff of the HPC was also involved. 12. From the above it is crystal clear that in the course of the investigation carried out by the CBI, the specific allegations pertaining to the charges levelled against the appellant in the Departmental Proceeding were not investigated, particularly, in respect of the allegations pertaining to the manipulation and destruction of official records and creation of fresh records. The conclusion of the investigating agency appears to have proceeded on the basis that the contractors engaged by the HPC hold executed agreements with permit holders of Mizoram for supply of bamboo to the HPC and such bamboo had been shown to have moved on the basis of the transit passes and delivery challans and further that such movement was subjected to regular checks at the Inter-State Check Gate. The aforesaid conclusion of the CBI does not answer the charges levelled against the appellant in the Departmental Proceeding which are to the effect that the appellant had facilitated issuance of blank delivery challans and had abetted his staff to make fictitious entries of vehicle numbers in the registers in the Check Gate. The CBI also did not enquire into the specific charge levelled against the appellant that out of the very many trucks whose entry was recorded in the registers at the Check Gate, only nine trucks had reported at the mill site for delivery of bamboo. The CBI also did not enquire into the specific charge levelled against the appellant that out of the very many trucks whose entry was recorded in the registers at the Check Gate, only nine trucks had reported at the mill site for delivery of bamboo. No enquiry or investigation had been carried out by the CBI with regard to the allegations of destruction of records of the Lailapur Check Gate and creation of fresh records. In the aforesaid circumstances, by no stretch of imagination or reasoning the court can understand that the exoneration contained in the Final Report dated 16.12.2002 submitted by the CBI would stand as an exoneration of the appellant from the charges levelled against him in the Departmental Proceeding. 13. For the aforesaid reasons, we are unable to accept the argument advanced on behalf of the appellant that in view of the closure of the Criminal Case against the appellant by the CBI, the punishment imposed on him, as a sequel to the Departmental Proceeding, should be interfered with by us. We, therefore, dismiss the Appeal. However, in the facts and circumstances of the case, we leave the parties to bear their own costs. Appeal dismissed