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2014 DIGILAW 320 (GAU)

PRADIP KUMAR GOSWAMI v. STATE OF ASSAM

2014-03-18

UJJAL BHUYAN

body2014
JUDGMENT & ORDER (ORAL) By way of this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 29.04.2006, passed by the Chairman-cum-Managing Director, Assam State Co-operative Marketing Consumers Federation Limited (STATEFED), directing recovery of an amount of Rs.5,63,343.75 from his arrear dues. 02. Case of the petitioner is that while he was serving as Inspector in STATEFED, he was served with a show cause notice dated 17/20.12.1990, issued by the Managing Director, STATEFED asking him to show cause under Rule 9 of the Assam Services (Discipline & Appeal) Rules, 1964, read with Article 311 of the Constitution of India, Service Regulations of STATEFED and the Assam Civil Services (Conduct) Rules, 1965, as to why any of the penalties prescribed in Rule 7 of the 1964 Rules should not be imposed on him for the charges mentioned therein. Sum and substance of the charges brought against the petitioner is that while he was working as Inspector in the Mission Chariali godown of STATEFED under Tezpur Branch, he was responsible for shortage of various quantities of rice of different categories, the value of which was assessed at Rs.5,63,343.75. Petitioner was accordingly charged with misappropriation of the aforesaid amount. 03. It appears that a disciplinary proceeding was initiated against the petitioner which culminated in the order dated 21.09.1991, passed by the Managing Director, STATEFED, whereby the petitioner was dismissed from service. 04. Petitioner approached this Court against the aforesaid order of dismissal by filing Civil Rule No. 3924/1993. This Court by order dated 10.09.1996 held that petitioner was denied a fair inquiry as adequate opportunity was not granted to him to submit written statement. It was also held that no witnesses were examined and the documents produced by the Presenting Officer were admitted and accepted without allowing the petitioner to examine the same. Accordingly, the order of dismissal was set aside and the petitioner was directed to be reinstated in service forthwith, but without any back wages. However, liberty was granted to the respondents to hold a domestic enquiry in accordance with law, if it was considered necessary. 05. Following the aforesaid order of this Court, petitioner was reinstated in service. However, the Disciplinary Authority decided to conduct domestic inquiry de-novo. Accordingly, Inquiry Officer as well as Presenting Officer were appointed on 18.03.1997 to conduct inquiry de-novo on the same set of charges. 06. 05. Following the aforesaid order of this Court, petitioner was reinstated in service. However, the Disciplinary Authority decided to conduct domestic inquiry de-novo. Accordingly, Inquiry Officer as well as Presenting Officer were appointed on 18.03.1997 to conduct inquiry de-novo on the same set of charges. 06. It appears that a domestic inquiry was conducted thereafter by the Inquiry Officer pursuant to which he submitted his report dated 28.03.2006 to the Disciplinary Authority holding that the charges brought against the petitioner were sustained beyond all doubt. 07. On consideration of the inquiry report, the Chairman-cum-Managing Director, STATEFED passed the order dated 29.04.2006 holding that the petitioner was responsible for misappropriating the amount of Rs.5,63,343.75, which should be recovered from him. Accordingly, it was ordered that the aforesaid amount be recovered from the arrear dues of the petitioner. 08. In the meanwhile, it appears that because of various reasons, proceedings were initiated for liquidation of STATEFED and Official Liquidator was appointed to oversee the liquidation process. It further appears that petitioner went on voluntary retirement w.e.f. June, 2006 on acceptance of his VRS application. 09. Petitioner thereafter submitted an application dated 31.08.2006 for review of the order dated 29.04.2006. The Liquidator, STATEFED by his order dated 07.06.2007 rejected the prayer for review and upheld the order of penalty. 10. Hence this writ petition. 11. Respondent No. 2 has filed counter-affidavit. Stand taken is that all the laid down procedures were followed while conducting the departmental proceeding. Petitioner had submitted his written statement after inspection of record. Though it was submitted belatedly, it was accepted. Delay in conclusion of the inquiry was because of retirement of the earlier Inquiry Officer, Sri JN Bhuyan, who was thereafter substituted by Sri Mahesh Chandra Sarma. Though witnesses were adduced by the Presenting Officer, no witnesses were adduced by the petitioner other than himself. Petitioner was granted adequate opportunity to defend his case during the domestic inquiry. Petitioner caused huge loss to the STATEFED and, therefore, order for recovery is justified. No ground for interference is made out. 12. Heard Ms. P Barman, learned counsel for the petitioner and Ms. J Bora, learned Standing Counsel, STATEFED. She has also produced the record. 13. Learned counsel for the petitioner submits that the inquiry was conducted in a very perfunctory manner and the charges levelled against the petitioner could not be said to have been proved. 12. Heard Ms. P Barman, learned counsel for the petitioner and Ms. J Bora, learned Standing Counsel, STATEFED. She has also produced the record. 13. Learned counsel for the petitioner submits that the inquiry was conducted in a very perfunctory manner and the charges levelled against the petitioner could not be said to have been proved. She further submits that the quantum of loss alleged to have been suffered because of the petitioner was also not proved in its entirety, though she fairly submits that some loss was caused to the STATEFED. Fastening entire liability on the petitioner is not justified. In such circumstances, directing recovery of the entire amount as per the show cause notice from the arrear dues of the petitioner would not be justified. 14. Learned counsel for the respondents on the other hand submits that petitioner was given all opportunity to defend himself. He had gone through the record and had submitted his written statement very belatedly, which was accepted by the Disciplinary Authority. During the inquiry also, he was given adequate opportunity which he availed. Impugned order passed by the Disciplinary Authority cannot be said to be arbitrary or unreasonable. It also cannot be said to be disproportionate to the gravity of the charges, which had been proved following a regularly constituted departmental proceeding. No case for interference is made out, she submits. 15. Submissions made have been considered. I have also perused the record produced by Ms. J Bora, learned counsel for the respondents. 16. Though learned counsel for the petitioner has assailed the impugned order on various grounds, from a perusal of the impugned order dated 29.04.2006, it does not appear that copy of the inquiry report was furnished to the petitioner and no representation of the petitioner was called for regarding his say on the inquiry report and the penalty proposed. The record produced by the learned counsel for the respondents also does not indicate that copy of the inquiry report was furnished to the petitioner or that he was asked to make his representation on the inquiry report and the penalty proposed. 17. The record produced by the learned counsel for the respondents also does not indicate that copy of the inquiry report was furnished to the petitioner or that he was asked to make his representation on the inquiry report and the penalty proposed. 17. Since the entire amount of Rs.5,63,343.75, which the Disciplinary Authority had charged the petitioner to have misappropriated, has been ordered to be recovered from the arrear dues of the petitioner and since the said order is based on the inquiry report, according to which the charges stood sustained beyond all doubt, it was incumbent upon the Disciplinary Authority to have furnished a copy of the inquiry report alongwith his tentative decision thereon to the petitioner to have his say in the matter. Non-furnishing of the inquiry report was, therefore, clearly prejudicial to the petitioner, which vitiated the decision making process culminating in the impugned decision dated 29.04.2006. 18. Law relating to requirement of furnishing inquiry report to the delinquent to have his say thereon before final decision is taken by the Disciplinary Authority and the consequence of non-furnishing of inquiry report is well settled and requires no re-statement. Suffice it to say such a requirement is not an empty formality but is a part of fair procedure. 19. In such circumstances and having regard to the above, Court is of the view that it would meet the ends of justice, if the matter is remanded back to the Liquidator, STATEFED to start the departmental proceeding afresh from the stage of furnishing copy of inquiry report. Since the inquiry report is already on record and is available with the petitioner, petitioner shall submit a detailed representation on the inquiry report before the Liquidator, STATEFED within a period of 30 days from today. He would be entitled to raise all grounds in support of his defence. On receipt of such representation, the Liquidator, STATEFED shall consider the same and pass appropriate order(s) thereafter in accordance with law within a period of 60 days from the date of receipt of the representation. Till such decision is taken, impugned order dated 29.04.2006 shall not be given effect to, which in any case, shall be subject to such fresh decision which may now be taken by the Liquidator, STATEFED. 20. Writ petition is accordingly allowed to the extent indicated above. No costs.