Research › Search › Judgment

Calcutta High Court · body

2011 DIGILAW 1388 (CAL)

Gopi Ballav Sarkar v. Food Corporation of India

2011-09-30

PRANAB KUMAR CHATTOPADHYAY, SHUKLA KABIR SINHA

body2011
JUDGMENT PRANAB KUMAR CHATTOPADHYAY 1. The appellant herein is an employee of Food Corporation of India (hereinafter referred to as FCI). The Senior Regional Manager, FCI being the disciplinary authority issued charge sheet to the appellant herein on 5th August, 1997 for issuing release orders of 236 quintals of sugar against false/fictitious indents to one wholesale distributor namely, M/s. Sree Durga Trading Centre, Rajnagar, Birbhum. 2. The appellant-writ petitioner while working in the district office of Food Corporation of India at Suri, Birbhum during the period from April, 1995 to July, 1996 issued the release orders for 236 quintals of levy sugar in favour of Sree Durga Trading Centre. It has been alleged that the said release orders were issued by the appellant without verifying the signatures on the indents made by the indent issuing authority and the dealing authority of the indent section. An anonymous complaint alleging the release of sugar illegally from the Food Storage Depot was received by the then District Manager-in-Charge, Food Corporation of India. On enquiry it revealed that the indents in question were not issued by the competent authority. Accordingly, First Information Report was lodged with the police. Thereafter, the appellant-writ petitioner was placed under suspension. However, the said order of suspension was subsequently revoked by the competent authority upon considering the prayer of the appellant herein. From the records we also find that the appellant-writ petitioner submitted reply to the charge sheet. A common proceeding was held against the petitioner and other charged officials. The Enquiry Officer submitted the enquiry report after conclusion of the enquiry proceeding. Thereafter, the Disciplinary Authority passed the final order in respect of the appellant-writ petitioner imposing the penalty of reduction in rank in Assistant Grade-II at the minimum of the stage of the scale. The appellant-writ petitioner preferred an appeal against the aforesaid final order of punishment and the appellate authority rejected the said appeal upon confirming the penalty imposed by the Disciplinary Authority. The appellant-writ petitioner thereafter filed the writ petition before this Court challenging the aforesaid final order of punishment passed by the Disciplinary Authority and the subsequent order passed by the Appellate Authority rejecting the appeal preferred from the said order of the Disciplinary Authority. The aforesaid writ petition was ultimately dismissed by the learned Single Judge in absence of the learned counsel of the respective parties. The aforesaid writ petition was ultimately dismissed by the learned Single Judge in absence of the learned counsel of the respective parties. The said learned Single Judge while dismissing the writ petition held that the grounds mentioned in the writ petition by the appellant herein are based on disputed question of facts and the same cannot be decided in an application filed under Article 226 of the Constitution of India. 3. GOING through the available records and considering the undisputed facts as well as the pleadings of the respective parties, we are of the opinion that the grievances of the appellant-writ petitioner herein can be decided by this Court in its Constitutional Writ Jurisdiction. However, instead of sending the matter back to the learned Single Judge for the purpose of deciding the writ petition on merits, we are of the opinion that the grievances of the appellant-writ petitioner should be adjudicated by us while deciding the instant appeal to which the learned counsel of both the parties raised no objection. The learned counsel of the appellant submitted that the charge sheet discloses the closed and bias mind of the Disciplinary Authority. The learned senior counsel representing the respondent corporation submitted that the aforesaid plea was neither taken by the appellant-writ petitioner in his reply to the charge sheet nor at any stage of the disciplinary proceeding. The learned counsel of the respondent corporation further submitted that in the writ petition also the appellant herein did not take the aforesaid objection. 4. MR. L. K. Gupta, learned senior counsel of the respondent corporation submitted that the appellant herein never alleged earlier that the authorities of the respondent corporation had a closed mind. We also do not find any merit in the aforesaid allegation made on behalf of the appellant herein. The learned counsel of the appellant however, very strongly urged before this Court that the said appellant-writ petitioner did not commit any misconduct by issuing the release orders for 236 quintals of sugar in favour of Sree Durga Trading Centre against the indents. Mr. Amalesh Roy, representing the appellant-writ petitioner submitted that the said appellant-writ petitioner was not a regular staff of Release Order Section and therefore, due to sheer mistake issued the release orders without realising that the indents were fake/fictitious. Mr. Roy submitted that the aforesaid mistake cannot constitute any misconduct. Mr. Amalesh Roy, representing the appellant-writ petitioner submitted that the said appellant-writ petitioner was not a regular staff of Release Order Section and therefore, due to sheer mistake issued the release orders without realising that the indents were fake/fictitious. Mr. Roy submitted that the aforesaid mistake cannot constitute any misconduct. The learned counsel of the appellant relied upon the letter dated 30th November, 1995 issued by the District Manager, Burdwan, in support of the aforesaid submission. The relevant extracts from the aforesaid letter of the District Manager, FCI, Burdwan are reproduced hereinbelow :- As regard to staff function Shri G. B. Sarkar, AG. I (Genl.) who has been discharging Admn., vigilence functioning does not concern with R.O. Section. However the then D.M. authorised vide No. (smudged) dt. 6.11.93 to facilitate the work of R. O. Section in the absence of Section Officer. In this instance since he does not come under R. O. Section and there is no lapse/direct accountability on his part, revocation of suspension order may kindly be considered. 5. MR. Roy submitted that the appellant-writ petitioner was admittedly not a regular staff of the Release Order Section and temporarily authorised to discharge the duty in absence of regular employee. MR. Roy further submitted that the appellant-writ petitioner was victim of the circumstances by committing the mistake which should not be regarded as misconduct. MR. Roy specifically urged before this Court that the appellant-writ petitioner made the aforesaid mistake while working in the Release Order Section in absence of a regular employee and the aforesaid mistake cannot be regarded as misconduct specially when there was no ill motive on the part of the appellant-writ petitioner herein. MR. Roy further submitted that the Enquiry Officer also did not find any ill motive of the appellant-writ petitioner in the matter of issuing the release orders in question. MR. Roy referred to the report submitted by the Enquiry Officer in support of the aforesaid contention. MR. Roy also submitted that the allegations levelled against the appellant herein do not come within the meaning of misconduct as defined in Regulation 32A of the Food Corporation of India (Staff) Regulations, 1971. MR. Roy submitted that the Disciplinary Authority did not consider the report of the Enquiry Officer properly. 6. REFERRING to the order passed by the Disciplinary Authority Mr. MR. Roy submitted that the Disciplinary Authority did not consider the report of the Enquiry Officer properly. 6. REFERRING to the order passed by the Disciplinary Authority Mr. Roy submitted that the said Disciplinary Authority while referring to the charges framed against the appellant herein specifically mentioned that the said appellant by issuing the release orders in question caused the financial loss to the corporation to the tune of Rs. 1,52,222/- which is contrary to the specific findings of the Enquiry Officer. Mr. L. K. Gupta, learned senior counsel representing the respondent Food Corporation of India Authorities also submitted that the Food Corporation of India did not suffer any financial loss in view of issuing of the release orders for 236 quintals of levy sugar to M/s. Sree Durga Trading Centre but the said FCI faced loss of stock of levy sugar. Mr. Gupta submitted that the Enquiry Officer in the enquiry report specifically recorded the following findings :- It has been testified by all the three prosecution witnesses and the Charged Officers that there was no overdrawal of the allotted quantities by the State Government (smudged) during the period April, 1995 to July, 1995 and that Release Orders were issued only after realisation of cost in advance. The learned counsel representing the appellant-writ petitioner relied upon the following judgments :- a) Council of the Institute of the Chartered Accountants of India Vs. Somnath Basu, reported in AIR 2007 Cal 29 Paragraph 61. b) U. N. Biswas Vs. Union of India and Ors., reported in 1998 (1) CLJ 502 paragraph 32 and paragraph 52. c) Andhra Pradesh State Road Transport Corporation Vs. P. Appa Rao, reported in 2007 (15) SCC 746 paragraph. 7. MR. Gupta, learned senior counsel representing the respondent corporation however, submitted that the ill motive or guilty mind is not an essential ingredient of misconduct. MR. Gupta further submitted that an unintentional wrongful omission may amount to misconduct. MR. Gupta also submitted that the allegation of non-consideration of the enquiry report by the Disciplinary Authority while passing the final order of punishment is contrary to the records. MR. Gupta further submitted that an unintentional wrongful omission may amount to misconduct. MR. Gupta also submitted that the allegation of non-consideration of the enquiry report by the Disciplinary Authority while passing the final order of punishment is contrary to the records. In the instant case although specific allegation of ill motive on the part of the appellant has been alleged by the learned senior counsel of the respondent FCI Authorities, we find that the appellant herein was directed by the District Manager to work in the R.O. Section in the absence of regular Section Officer and subsequently while rejecting the order of suspension the said District Manager specifically held that there was no lapse of direct accountability on the part of the appellant herein. The appellant herein was discharging the duties in the Administrative and Vigilance wing and was not concerned with R.O. Section. 8. ACCORDINGLY, the appellant is likely to commit procedural mistakes while working in the R.O. Section. The appellant herein not being a regular employee of the R.O. Section cannot be well conversant with the procedures relating to the issuance of the release order. The said appellant is not expected to be conversant with the signatures of the indent issuing authority and dealing assistant since the said appellant was not a regular employee of the R.O. Section. There is no dispute that the appellant herein issued the release orders upon production of the indents and realising cost in advance. It has not been alleged that the said appellant earned any profit or made any wrongful gain by issuing the release orders in respect of the levy sugar to M/s. Sree Durga Trading Centre. We find that the appellant herein unintentionally committed procedural lapses and/or mistakes which have been treated as misconduct by the authorities of the FCI. The ill motive of the appellant has not been established during the enquiry proceedings conducted by the enquiry officer. On examination of the available records and specially scrutinizing the report of the enquiry officer we find that neither the allegation of ill motive against the appellant herein has been established nor we find that the said appellant issued the release orders in question for any wrongful gain. On examination of the available records and specially scrutinizing the report of the enquiry officer we find that neither the allegation of ill motive against the appellant herein has been established nor we find that the said appellant issued the release orders in question for any wrongful gain. Therefore, it cannot be said that the appellant herein committed misconduct by signing the release orders in question on fake/fictitious indents since the said appellant failed to detect that the seal of the indent issuing authority and signatures of the indent issuing authority as well as the dealing assistant are false. The aforesaid mistakes were committed by the appellant herein as he was not a regular employee of the Release Order Section. Mistakes do not constitute misconduct. 9. IN the case of Council of the Institute of Chartered Accountants of India vs. Somnath Basu (supra), a Division Bench of this Court held:- Misconduct arises from ill-motive and mere acts of negligence, innocent mistake or errors of judgment do not constitute the misconduct. Even if there is any negligence in performance of duties or errors of judgment in discharging of such duties, the same cannot constitute misconduct unless ill-motive in the aforesaid acts are established. 10. MR. L. K. Gupta, learned senior counsel of the respondent corporation however, did not agree with the aforesaid principle and relied upon a decision of this Court in the case of Probodh Kumar Bhowmick vs. University of Calcutta and Ors., reported in 1994 (2) CLJ 456 which in our opinion cannot be of any help to the respondent corporation in the facts of the present case. In the aforesaid decision, learned Single Judge held :- 14. Misconduct, inter alia, envisages breach of discipline, although it would not be possible to lay down exhaustively as to what would constitute conduct and indiscipline, which, however, is wide enough to include wrongful omission or commission whether done or omitted to be done intentionally or unintentionally. It means, improper behaviour ; intentional wrong doing on deliberate violation of a rule of standard or behaviour The learned Single Judge in the aforesaid decision also referred to a decision of the Hon’ble Supreme Court in the case of State of Punjab and Ors. Vs. It means, improper behaviour ; intentional wrong doing on deliberate violation of a rule of standard or behaviour The learned Single Judge in the aforesaid decision also referred to a decision of the Hon’ble Supreme Court in the case of State of Punjab and Ors. Vs. Ram Singh Ex-Constable, reported in (1992) 4 SCC 54 wherein misconduct as defined in Blacks Law Dictionary has been quoted as hereunder :- Misconduct has been defined in Blacks Law Dictionary, Sixth Edition at page 999 thus :- A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behaviour, wilful in character, improper or wrong behaviour, its synonyms are misdemeanor, misdeed, misbehaviour, delinquency, impropriety, mismanagement, offense, but not negligence or carelessness. Misconduct in office has been defined as : Any unlawful behavior by a public officer in relation to the duties of his office, wilful in character. Term embraces acts which the office holder had no right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act. The aforesaid decision of the learned Single Judge does not lay down any principle contrary to the principles laid down by the Division Bench in the case of Council of the Institute of the Chartered Accountants of India Vs. Somnath Basu (supra). 11. IN the aforesaid circumstances, we cannot hold that the appellant herein is guilty of any misconduct as the mistakes cannot constitute any misconduct in absence of any wrongful intention and ill motive which have not been established in the instant case before the enquiry officer. The Disciplinary Authority while considering the representation of the appellant herein as well as the report of the enquiry officer did not consider nor even dealt with the specific findings of the enquiry officer since the enquiry officer did not allege any ill motive in respect of the appellant herein. The enquiry officer repeatedly held that the appellant herein failed to detect the irregularities while issuing the release orders of levy sugar. The relevant extracts from the enquiry report are set out hereunder :- The District Office/Food Corporation of India/Suri/Birbhum did not follow systemised procedures in respect of the indents/applications received by it for issue of delivery orders since inception. The enquiry officer repeatedly held that the appellant herein failed to detect the irregularities while issuing the release orders of levy sugar. The relevant extracts from the enquiry report are set out hereunder :- The District Office/Food Corporation of India/Suri/Birbhum did not follow systemised procedures in respect of the indents/applications received by it for issue of delivery orders since inception. Neither the District Controller nor the Sub Divisional Controller, Food and Supplies (i) send monthly sugar wholesalerwise allotments ; (ii) send specimen signatures of the Indent Issuing Authorities and the Dealing Assistant in the Offices of Sub Divisional Controllers, Food and Supplies; (iii) follow a prescribed uniform proforma of the Indent, leaving ample scope for the Sugar Wholesalers to print their own performance ; (iv) route the indents through State Government representative, instead preferred to send them directly through the Sugar Wholesalers; and (v) possess regulatory controls over their activities. Taking advantage of these shortcomings M/s. Sree Durga Trading Centre through its proprietor, Shri Prabir Kumar Ghosh, submitted Indent Nos. 581 dated 24.4.96 for 116 qtls. 606 dated 8.6.96 for 116 qtls. 641 dated 12.6.96 for 116 qtls. And 680 dated 7.7.96 for 120 qtls. with full knowledge that he had obtained Indent Nos. 581 dated 18.4.95 for 116 qtls 643 dated 5.6.96 for 116 qtls. and 681 dated 3.7.95 for 110 qtls. of levy sugar. 12. The Disciplinary Authority cannot ignore the specific findings of the enquiry officer, as recorded in the enquiry report although the said Disciplinary Authority is supposed to arrive at its findings on the basis of the recorded evidence in the enquiry. In this context, the learned counsel of the appellant relied on a decision of the Supreme Court in the case of Managing Director, ECIL, Hyderabad and Ors. Vs. B. Karunakar and Ors., reported in (1993) 4 SCC 727 wherein Hon’ble Supreme Court observed :- Although it is true that the disciplinary authority is supposed to arrive at its own findings on the basis of the evidence recorded in the inquiry, it is also equally true that the disciplinary authority takes into consideration the findings recorded by the enquiry officer along with the evidence on record. The learned counsel of the appellant relied upon a decision of this Court in the case of Ashim Kumar Sarkar Vs. The learned counsel of the appellant relied upon a decision of this Court in the case of Ashim Kumar Sarkar Vs. Union of India and Ors., reported in (2011) 1 WBLR (Cal) 801 wherein this court held :- 24. The disciplinary authority should have arrived at independent findings after considering the representation of the petitioner and analysing the materials on record in an appropriate manner. Without recording independent findings in relation to the charges levelled against the petitioner, disciplinary authority had acted in clear violation of the principles of natural justice and procedural justice. It is very much difficult for us to know why the disciplinary authority did not find any merit in the objections specifically raised by the petitioner in the representation submitted before the said disciplinary authority. 13. The learned counsel of the appellant also submitted that the criminal case initiated on the self-same allegation against the appellant herein has been disposed of wherein the appellant was not found guilty of the charges levelled against him. A copy of the judgment delivered by the learned Judge, First Special Court, Suri, Birbhum in Special Court Case No. 3/2000 dt. 30/11/2010 has been produced before this Court by annexing the same in the application being C.A.N. 540 of 2011 filed in connection with the appeal. From the judgment and order passed by the Special Court, we find that the appellant herein along with others were found not guilty of the charges levelled against them and were acquitted accordingly. 14. MR. Roy submitted that the findings of the competent criminal court in respect of the appellant herein must prevail upon the decision of the Administrative Authority namely, the Disciplinary Authority. MR. Roy cited the following decisions, in support of his aforesaid contentions :- a. G. M. Tank Vs. State of Gujarat and Ors., reported in (2006) 5 SCC 446 . b. State of West Bengal and Ors. Vs. Bidyasagar Pandey and Anr., reported in 2011 (1) CLJ (Cal) 57 paragraph 15. In the case of G. M. Tank Vs. State of Gujarat and Ors., (supra) Hon’ble Supreme Court observed :- 20. The appellant has been honourably acquitted by the competent court on the same set of facts, evidence and witness and, therefore, the dismissal order based on the same set of facts and evidence on the departmental side is liable to be set aside in the interest of justice. State of Gujarat and Ors., (supra) Hon’ble Supreme Court observed :- 20. The appellant has been honourably acquitted by the competent court on the same set of facts, evidence and witness and, therefore, the dismissal order based on the same set of facts and evidence on the departmental side is liable to be set aside in the interest of justice. In the case of State of West Bengal and Ors. Vs. Vidyasagar Pandey and Anr. (supra), this court held :- 15. Since both the criminal and departmental proceedings initiated against the respondent no. 1 are based on the identical charge arising out of the same set of facts, the findings of the learned Magistrate in respect of the said charge must prevail upon the disciplinary authority as the findings of the judicial authority should prevail upon the findings of the disciplinary authority on a particular issue. MR. Gupta, learned senior counsel of the respondent corporation however, disputed the aforesaid contentions made on behalf of the appellant and relied on a decision of the Supreme Court in the case of State Bank of Bikanir and Jaipur Vs. Nemi Chand Nalwaya, reported in (2011) 4 SCC 584 relevant extracts from the aforesaid judgment are set out hereunder :- 10. The fact that the criminal court subsequently acquitted the respondent by giving him the benefit of doubt, will not in any way render a completed disciplinary proceedings invalid nor affect the validity of the finding of guilt or consequential punishment. The standard of proof required in criminal proceedings being different from the standard of proof required in departmental enquiries, the same charges and evidence may lead to different results in the two proceedings, that is, finding of guilt in departmental proceedings and an acquittal by giving by giving benefit of doubt in the criminal proceedings. This is more so when the departmental proceedings are more proximate to the incident, in point of time, when compared to the criminal proceedings. The findings by the criminal court will have no effect on previously concluded domestic enquiry. An employee who allows the findings in the enquiry and the punishment by the disciplinary authority to attain finality by nonchallenge, cannot after several years, challenge the decision on the ground that subsequently, the criminal court has acquitted him. There cannot be any dispute with regard to the principles decided by the Hon’ble Supreme Court in the aforesaid case. An employee who allows the findings in the enquiry and the punishment by the disciplinary authority to attain finality by nonchallenge, cannot after several years, challenge the decision on the ground that subsequently, the criminal court has acquitted him. There cannot be any dispute with regard to the principles decided by the Hon’ble Supreme Court in the aforesaid case. However, the aforesaid decision has no manner of application in the facts of the present case since the employee concerned namely, the appellant herein did not allow the order of punishment passed by the Disciplinary Authority to attain finality by non-challenge as happened in the aforesaid case before the Hon’ble Supreme Court. Furthermore, the appellant herein did not challenge the decision of the Disciplinary Authority after lapse of several years on the ground that the criminal court has acquitted him as was done by the employee concerned in the aforesaid case before the Hon’ble Supreme Court. In the instant case, the appellant herein challenged the final order passed by the Disciplinary Authority without any delay before the Appellate Authority and subsequently, before the Hon’ble High Court by filing a writ petition and during the pendency of the writ petition, the competent criminal court acquitted the appellant-writ petitioner in respect of the self-same charges which were mentioned in the charge-sheet issued by the Disciplinary Authority. 15. The aforesaid fact regarding acquittal of the writ petitioner by the competent criminal court therefore, should be taken into consideration by this court in deciding the question of sustainability of the final order of punishment imposed upon the appellant herein since the findings of the judicial authority should prevail upon the disciplinary authority in respect of the self-same charges. The acquittal of the appellant by the criminal court cannot be ignored by the High Court while deciding the fate of the order of punishment passed by the Disciplinary Authority which was subsequently, affirmed by the appellate authority. 16. FOR the reasons discussed hereinabove, we are of the opinion that the disciplinary proceedings initiated against the appellant herein cannot be sustained in the eye of law since we find that the mistakes committed by the said appellant in course of discharge of the official duties did not constitute any misconduct. 16. FOR the reasons discussed hereinabove, we are of the opinion that the disciplinary proceedings initiated against the appellant herein cannot be sustained in the eye of law since we find that the mistakes committed by the said appellant in course of discharge of the official duties did not constitute any misconduct. In the aforesaid circumstances, the order of punishment passed by the Disciplinary Authority which was subsequently, affirmed by the Appellate Authority cannot be sustained in the eye of law and the same are accordingly quashed. FOR the identical reasons, the impugned judgment and order under appeal passed by the learned Single Judge cannot be sustained and the same is accordingly set aside. The respondent authorities are directed to forthwith grant all admissible service benefits including financial benefits to the appellant herein upon treating the said appellant in service of the Corporation all through at the appropriate grade and scale as if no disciplinary proceeding was ever initiated or any order of punishment was passed in respect of the said appellant. In the facts of the present case, there will be however no order as to costs. Let urgent Xerox certified copy of this judgment and order, if applied for, be given to the learned Advocates of the parties on usual undertaking.