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2015 DIGILAW 661 (GAU)

Md. Imran Ullah v. Union of India

2015-06-01

UJJAL BHUYAN

body2015
JUDGMENT : This case was heard on 14.05.2015 and today is fixed for delivery of judgment. 2. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 02.01.2008 passed by the Chief Administrative Officer, 10 Wing, Air Force, C/o 99 APO, Jorhat whereby penalty of removal from service was imposed on the petitioner. 3. Case of the petitioner is that he was appointed as Cinema Manager in the Jorhat station of Indian Air Force on 31.01.1984 pursuant to which he joined on 01.02.1984. In the year 2001, the authority decided to terminate the services of all the civil employees employed in the Cinema hall, on the ground that the Cinema hall was incurring heavy loss. At that stage, petitioner moved this Court by filing WP(C) No. 3112/2001. This Court disposed of the writ petition vide order dated 01.05.2001 with the direction that service of the petitioner may be terminated either by giving 3 (three) months notice or by paying salary in lieu thereof. It was also ordered that all terminal benefits should be released to the petitioner before terminating his service. 4. Thereafter order dated 31.05.2001 was passed revoking the order of termination. Though other terminated employees had rejoined but petitioner was not allowed to re-join his duty. This led to filing of second writ petition i.e. WP(C) No. 6607/2003 which was disposed of on 16.08.2005 with the direction that petitioner should be allowed to join in his service and he should be paid his salary. However, respondents were given liberty to complete any enquiry proceeding drawn up against the petitioner. It was only after passing of the order dated 16.08.2005 that the petitioner was allowed to resume his duty and his salary was released. 5. Show-cause notice dated 14.12.2006 was issued to the petitioner by the Chief Administrative Officer who was the appointing as well as the disciplinary authority of the petitioner. By the said show-cause notice, petitioner was charged with misappropriating a sum of Rs. 95,625.00 during the period from 01.01.2000 to 30.10.2000. The substance of the allegation is that petitioner had drawn cash from the bank in lieu of cheques for making demand drafts to pay the film distributors but while making the demand drafts, the full amounts were not paid to the film distributors. 95,625.00 during the period from 01.01.2000 to 30.10.2000. The substance of the allegation is that petitioner had drawn cash from the bank in lieu of cheques for making demand drafts to pay the film distributors but while making the demand drafts, the full amounts were not paid to the film distributors. Alongwith the show-cause notice a list of documents and a list of witnesses were annexed. The list of documents contained three documents by which the lone article of charge framed was sought to be proved. The list of witnesses comprised of six witnesses to be relied upon by the disciplinary authority to prove the charge against the petitioner. 6. Petitioner submitted his written statement in defence on 26.12.2006 denying the charge level led against him. While pointing out that the quantum of alleged misappropriation differed from stage to stage, petitioner stated that he had not been provided the required documents to make a proper defence. He also sought for three additional documents in the custody of the Station Administration for his perusal so that he could defend himself properly. 7. It appears that the response of the petitioner was not found to be satisfactory and accordingly the disciplinary authority decided to hold enquiry into the charge framed. Enquiry officer was appointed to enquire into the charge framed against the petitioner and at the same time presenting officer was also appointed to present the case of the disciplinary authority before the enquiry officer. 8. Thereafter, the enquiry was conducted. The enquiry officer submitted his enquiry report on 12.10.2007 holding that the charge of misappropriation of Rs.90,720.00 by the petitioner from the Air Force Cinema accounts stood proved. 9. The disciplinary authority furnished a copy of the enquiry report to the petitioner vide the forwarding letter dated 18.10.2007. Petitioner was also given opportunity to submit representation on the findings arrived at by the enquiry officer. 10. Petitioner submitted representation dated 27.10.2007 requesting the authority not to accept the report submitted by the enquiry officer and to exonerate him from the charge. 11. Thereafter impugned order dated 02.01.2008 was passed by the disciplinary authority imposing the penalty of removal from service on the petitioner. It was further ordered that petitioner would be treated to have remained absent from duty from 05.05.2001 to 12.12.2005 and consequently no wages would be paid to the petitioner for the said period. 12. 11. Thereafter impugned order dated 02.01.2008 was passed by the disciplinary authority imposing the penalty of removal from service on the petitioner. It was further ordered that petitioner would be treated to have remained absent from duty from 05.05.2001 to 12.12.2005 and consequently no wages would be paid to the petitioner for the said period. 12. Appeal filed by the petitioner against the order of penalty was rejected by the appellate authority on 29.02.2008. Hence, the writ petition. 13. Respondents have filed a common counter affidavit. It is stated that petitioner was a non-public fund employee. The Air Force Cinema was closed down w.e.f. 01.09.2004. Charge against the petitioner was misappropriation of cinema funds by paying lesser amounts to be film distributors then what were withdrawn from the cinema fund accounts. Show-cause notice was issued to the petitioner to which he had submitted his reply. Thereafter enquiry was conducted. Matter was duly inquired into in which petitioner participated and was given full opportunity to defend himself. Following a full fledged enquiry, charge against the petitioner was held to be proved. Thereafter, petitioner was given a copy of the enquiry report to which he had submitted his representation. On due consideration, the disciplinary authority accepted the report of the enquiry officer and imposed the penalty of removal from service on the petitioner. Since petitioner did not join service for the period from May, 2001 till 12.12.2005, he was not paid any wages for the said period. Contending that there is no merit in the writ petition, respondents seek dismissal of the same. 14. Heard Mr. S. K. Medhi, learned counsel for the petitioner and Mr. M. Phukan, learned Central Govt. Counsel who has produced the record. 15. Submissions made by learned counsel for the parties are on pleaded lines and therefore a detailed reference to the submissions so made is considered not necessary. However, the record produced by Mr. Phukan has been perused. 16. A perusal of the show-cause notice dated 14.12.2006 would show that petitioner was charged with misappropriation of cinema funds to the tune of Rs. 95,625.00. Such misappropriation was alleged to have taken place during the period from 01.01.2000 to 30.10.2000. 17. However, the record produced by Mr. Phukan has been perused. 16. A perusal of the show-cause notice dated 14.12.2006 would show that petitioner was charged with misappropriation of cinema funds to the tune of Rs. 95,625.00. Such misappropriation was alleged to have taken place during the period from 01.01.2000 to 30.10.2000. 17. In the first round of litigation which was necessitated because of summary discharge from service of the petitioner and others, this Court had directed that such termination would be possible only after 3 (three) months prior notice was given or salary in lieu thereof was paid. It was further held that petitioner would be entitled to the terminal benefits. Only thereafter his service could be dispensed with. 18. From the documents placed on record, it is seen that termination order was revoked by the Air Force authority on 31.05.2001 and the petitioner was asked to join duty. From a perusal of the order dated 16.08.2005 passed in WP(C) No. 6607/2003, it is seen that respondents were directed to allow the petitioner to join in service and to pay him his regular salary. It was also observed that respondents may complete the enquiry proceeding in accordance with law and that the petitioner should cooperate with the enquiry proceeding. 19. Moreover, it is not understood in what context the aforesaid observation was made as the order dated 16.08.2005 does not disclose pendency of any departmental proceeding against the petitioner at that stage. It is also not clear what happened between 31.05.2001 when the earlier termination order was revoked and petitioner was asked to join and 16.08.2005 when fresh order was passed by the Court directing the respondents to allow the petitioner to join service. However, considering the fact that this Court had to pass a fresh order on 16.08.2005 directing the respondents to allow the petitioner to join service, it would mean that petitioner was not allowed to join service before that. 20. Thereafter, show-cause notice dated 14.12.2006 was issued to the petitioner charging him with misappropriation of money to the tune of Rs.95,625.00 during the period 01.01.2000 to 30.10.2000 from cinema funds. As already noticed above, the allegation was that petitioner had drawn more money from the concerned account but paid lesser amount to the film distributors, thereby misappropriating the amount which was in short fall. 21. As already noticed above, the allegation was that petitioner had drawn more money from the concerned account but paid lesser amount to the film distributors, thereby misappropriating the amount which was in short fall. 21. Having noticed the above, it is seen that the disciplinary authority intended to establish the charge against the petitioner by relying on three documents which were mentioned in the list of documents annexed to the show-cause notice. The documents were as under:- “1. Copy of Cheques drawn as cash from Bank for the period from 01 Jan 2000 to 30 Oct 2000. 2. Film distributors statements of claims period from 01 Jan 2000 to 30 Oct 2000. 3. Forwarding letter of Demand Drafts to various Film distributors.” 22. From a reading of the inquiry report, it is seen that the presenting officer had produced three documents, Exts.-K, L & M in support of the charge. In addition three more documents, Exts. V, W & Y were produced by the presenting officer in the course of the enquiry which were not mentioned or included in the list of documents. Not only that, the enquiry officer in the course of the enquiry proceedings requisitioned as many as six documents for the purpose of the enquiry which also were not mentioned or included in the list of documents. These additional documents were as follows:- “3. The following additional documents were also produced by the Presenting officer during the progress of inquiry:- (i) Copy of letter dated 12 May 2000 for receipt of Rs. 25000/- of M/s MKD Films. (Exhibit.V). (ii) Copy of Indian Bank Rowriah letter dated 27 Jul 2007. (Exhibit. W). (i) Copy of Indian Bank Rowriah letter dated 25 Aug 2007. (Exhibit. Y). 4. The following documents were also called by Inquiry Officer during the inquiry proceedings for verification by the IO and delinquent official:- (i) Cash Book of Cinema Accounts for the period of 1999-2001. (ii) Distributor’s payments ledger registers for the period of 1999-2001. (iii) Distributor’s bills for films for the period of 1999-2001. (iv) Trail balance register for the period of 1999-2001. (v) Ledger of cinema accounts for the period of 1999-2001. (vi) DCS folders of various distributors for the period of 1999-2001.” 23. (ii) Distributor’s payments ledger registers for the period of 1999-2001. (iii) Distributor’s bills for films for the period of 1999-2001. (iv) Trail balance register for the period of 1999-2001. (v) Ledger of cinema accounts for the period of 1999-2001. (vi) DCS folders of various distributors for the period of 1999-2001.” 23. A perusal of the enquiry report would show that the aforesaid documents were relied upon by the enquiry officer against the petitioner in the enquiry and had played a vital part in arriving at the conclusion. It is a settled principle of natural justice that documents which are sought to be relied upon in the course of the enquiry against the delinquent must be furnished to the delinquent beforehand so that he gets a reasonable opportunity to meet the challenge of the documents. Without furnishing copies of the documents in advance to the petitioner and relying upon such documents in the enquiry to prove the charge against the petitioner violated the basic tenets of fair procedure. The same has vitiated the enquiry proceeding as being violative of the principles of natural justice. 24. As already noticed above, the list of witnesses contained as many as six witnesses who would give evidence to prove the charge against the petitioner. A careful perusal of the enquiry report would show that the only witness who gave evidence was witness No. 4, Indranil Chakraborty. The enquiry officer entirely relied upon the evidence given by respondent No. 4. 25. While the period of misappropriation alleged against the petitioner itself raises doubts considering the sequence of litigation in this Court, the fact that no film distributor had deposed or given evidence before the enquiry officer stating that they were not paid their dues or were paid less than their dues also raises question mark about the veracity itself of the allegation against the petitioner. In fact from a perusal of the record, it is seen that one distributor Sangam Pictures had sent the statement of accounts for the period from 01.04.1998 to 31.03.2001 to the Air Force authority on 19.05.2001 in response to requisition by the Air Force authority. It is further seen that telegram was sent by the Air Force authority on 16.05.2001 requisitioning such statement of accounts and the letter says that the statement was being forwarded as desired by the Air Force authority. It is further seen that telegram was sent by the Air Force authority on 16.05.2001 requisitioning such statement of accounts and the letter says that the statement was being forwarded as desired by the Air Force authority. This statement was introduced by the presenting officer as Ext. M in the enquiry proceeding and was heavily relied upon. Besides the fact that a copy of this document was not furnished to the petitioner yet relied upon in the enquiry, it also goes to show that the materials used against the petitioner to substantiate the charge were infact obtained at the prodding of the disciplinary authority. It only buttresses the view that more than any complaint by the film distributors, it was the disciplinary authority which wanted to get rid of the petitioner. 26. From the above, a conclusion may be drawn that the enquiry proceeding conducted against the petitioner did not comply with the requirements of fair procedure. Not only that, it appears that the authority was pre-determined to remove the petitioner. To that extent the enquiry appeared to be a mere formality. In such circumstances, Court is of the view that the penalty imposed on the petitioner on the basis of such enquiry report would be difficult to sustain. However, the Court cannot also remain oblivious of the fact that the Cinema hall in question has been closed down w.e.f. 01.09.2004. 27. Thus in view of the above, the impugned penalty dated 02.01.2008 is hereby set aside and quashed. However, taking an overall view, matter is remanded back to the disciplinary authority to take a fresh decision in the light of the observations made above which should also include the period of service of the petitioner from 05.05.2001 to 12.12.2005. Appropriate decision shall be taken within a period of 3 (three) months from the date of receipt of a certified copy of this order and communicated to the petitioner. 28. Writ petition is allowed to the extent indicated above. 29. Record produced by Mr. Phukan is returned back.