JUDGMENT : 1. A disciplinary proceeding qua the petitioner which culminated in an order of dismissal dated 27.02.2008 is the subject matter of this writ petition. The petitioner had unsuccessfully filed a departmental appeal which was also rejected vide order dated 05.08.2008 leading him to approach this Court. 2. The facts of the case may be put in a nutshell as follows: The petitioner had served for a long tenure of more than 30 years in the Food Corporation of India and at the relevant time, he was holding the post of Manager (Accounts). Vide an order dated 10.11.2006, a memorandum of charges was issued against the petitioner containing 5 nos. of charges. A gist of each of the charges may be stated in brief. (i). While working as Manager (Accounts) at the Divisional Office at Dibrugarh of the FCI, he had had failed to comply with the instructions of the Govt. of India contained in the letter dated 28.11.1995 while scrutinising 159 nos. of bills for reimbursement of Hill Transport Subsidy (hereinafter HTS) of food grain pertaining to the State of Arunachal Pradesh whereby claims which were higher at the admissible rate were passed and forwarded for payment. (ii). The petitioner had further violated the direction contained in the Govt. of India letters dated 25.06.1999 and 28.10.2002 while accepting/scrutinising 191 nos. of inadmissible HTS bills of sugar and instead passed the same for payment. (iii). 20 nos. of HTS reimbursement bill of Arunachal Pradesh were passed for payment by the petitioner in violation with the directions contained in the letter dated 31.10.1990. (iv). The C&AG in their Audit Report dated 27.04.2006 pointed out that food grains allotted by the Govt. of India based on population of the State which was @ 35 kgs per family per month, the petitioner had processed 9 nos. of HTS bill for the Government of Arunachal Pradesh for reimbursement of excess quantity which admittedly exceeded @ 35 kgs per family per month to @ Rs. 500/- per family per month. (v). The C&AG in their special audit of the HTS bills of the State of Arunachal Pradesh pointed out excess payment of Rs. 185.76 crores by the Regional Office, Guwahati at blockage of fund whereby interest @ 12% per annum was lost. 3. 500/- per family per month. (v). The C&AG in their special audit of the HTS bills of the State of Arunachal Pradesh pointed out excess payment of Rs. 185.76 crores by the Regional Office, Guwahati at blockage of fund whereby interest @ 12% per annum was lost. 3. On receipt of the aforesaid Charge Memo, the petitioner submitted his reply dated 04.12.2006 whereby he had emphatically denied the charges on an omnibus basis. On such denial, a departmental enquiry was contemplated and it is the case of the petitioner that he had initially engaged Shri D. Roy Choudhury, AGM (ME) of the FCI, Zonal Office, Northeast as the Defence Assistant. The said engagement which was accepted by Shri D. Roy Choudhury in writing was also endorsed by the General Manager of the respondent corporation by putting his signature on the said endorsement. However, it is an irony that after completion of the said process of engagement the aforesaid incumbent Shri D. Roy Choudhury was directed by the Management to act as is the Presenting Officer in the ensuing departmental proceeding. Thereafter, the enquiry proceedings were held and out of the five charges, except the fourth charge, the other four charges were held to be proved as per the report of the enquiry officer dated 19th September, 2007. The petitioner was given an opportunity to represent against the enquiry report which he had done by submitting a representation dated 14.10.2007. Upon considering the materials on record and the representation of the petitioner dated 14.10.2007, the disciplinary authority had passed an order dated 23.02.2008 whereby the petitioner was imposed the penalty of dismissal from service. The petitioner had thereafter preferred a departmental appeal dated 12.03.2008 which was also rejected vide the order dated 05.08.2008. Having exhausted of the remedies in the Department, the present writ petition was filed. 4. I have heard Shri A.C. Borbora, learned Senior Counsel assisted by Shri M. Smith. I have also heard Shri P.K. Roy, learned counsel appearing on behalf of the Food Corporation of India. 5. Though this Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India would be loath in going into the merits of the charges in a disciplinary proceeding, while examining the decision making process, certain basic elements constituting the charges are required to be dilated. 6. 5. Though this Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India would be loath in going into the merits of the charges in a disciplinary proceeding, while examining the decision making process, certain basic elements constituting the charges are required to be dilated. 6. The first charge as seen above revolves around a letter dated 28.11.1995 and the allegation is that the instructions contained in the said letter were not followed while scrutinising the bills of reimbursement of HTS. By the said letter, there was a prescribed manner for scrutinising the bills in connection with reimbursement of HTS. The gist of the said instructions was that - (i). The reimbursement of HTS for off route distribution points/fair price shop will not, under any circumstances exceed the amount which would have become reimbursable if the stocks were transported to the Principal Distribution Centres (PDC). (ii). No demand for either shifting or increasing the number of existing PDC will be entertained. 7. As per the first charge, the aforesaid instructions were grossly violated causing huge loss by way of excess payment of Rs. 41,12,14,144/-. 8. Shri Borbora, the learned Senior Counsel assails the very framing of the charge by contending that the instructions contained in the letter dated 28.11.1995 are not by way of a Circular and therefore the same would not have any binding effect. It is the further contention of the learned Senior Counsel that it was not the petitioner in the capacity of Manager (Accounts) who would have the sole authority for preparation of the bills and in fact the bills prepared by the petitioner were forwarded to the District Manager for consideration where after, the District Manager forwarded the same to the Regional Office where a super checking was done. Thereafter it goes for further scrutiny before the Senior Regional Manager and only after such approval, payment by way of cheque was made. The said practice was consistently being followed for three long years and it was only thereafter the present charge was framed which is clearly an afterthought. In fact it is the contention of the learned Senior Counsel that his client has been made a scapegoat. 9. As regards the charge no. 2 which pertains to accepting/scrutinising 141 nos. of HTS bills for sugar which was in violation of the instructions contained in the Govt. In fact it is the contention of the learned Senior Counsel that his client has been made a scapegoat. 9. As regards the charge no. 2 which pertains to accepting/scrutinising 141 nos. of HTS bills for sugar which was in violation of the instructions contained in the Govt. of India letters dated 25.6.1999 and 28.10.2002, Shri Borbora contends that prima facie this charge is perverse as no distinction could be made between food-grains and sugar as both are essential commodities of human consumption. 10. The third charge pertains to allowing reimbursement of excess amount inasmuch as out of the total distance, 266 kms was transportation by motorable load and 92 kms by head load and as a result excess payment of Rs. 19,46,26,406/- was made. The defence of the petitioner was that such claim was approved by none other than the Deputy Commissioner, Anini and he being the primary authority, there was no occasion to have any doubt over such claim. 11. Since the fourth charge was held to be not proved and the said finding of the Enquiry Officer was also accepted by the disciplinary authority, the same was not a matter of challenge within the purview of this writ petition. 12. The fifth charge is regarding the special audit of the HTS claims of the State of Arunachal Pradesh by the C & AG which quantified an excess amount of Rs. 185.76 crores and the charge pertains to the alleged loss of interest at 12% per annum for one year which had been quantified as Rs. 22.29 lakhs. The overall involvement of the petitioner in causing financial loss as per the charge came to Rs. 64,08,75,327/- and with interest for Rs.7,69,05,039/-. The learned Senior Counsel argues that this cannot be a separate charge at all as admittedly this is an outcome of the special audit which involves the four other charges and one of those had already been held to be not proved. 13. The impugned order of dismissal from service is assailed on a number of grounds. The learned Senior Counsel argues that this cannot be a separate charge at all as admittedly this is an outcome of the special audit which involves the four other charges and one of those had already been held to be not proved. 13. The impugned order of dismissal from service is assailed on a number of grounds. The prejudice caused to the petitioner by "hijacking" his Defence Assistance after approval by the competent authority, according to the learned senior counsel makes it apparent that the enquiry was conducted in an unfair manner inasmuch as, after discussing the defence strategy with his Defence Assistance, making him the Presenting Officer for the Management is itself impermissible both legally and morally and this has indeed vitiated the entire disciplinary proceeding. Shri Borbora, learned Senior Counsel submits that the foundation of the disciplinary proceeding itself being apparently full of malice, the entire proceeding itself is not sustainable. 14. Taking up of a specific ground of discrimination, the learned Senior Counsel cites the example of the other officers including senior officers, namely, Shri R.M. Verma who was holding the post of District Manager, minor penalty of only recovery of Rs. 5,00,000/- have been awarded. In paragraph 16 of the affidavit-in-reply of the petitioner there is a specific pleading with regard to four other similarly situated Manager (Accounts) including one from the district of Dibrugarh itself and the penalty imposed on identical charge confined to recovery and stoppage of certain numbers of increments. Example of another Manager (Accounts) Shri Viswanath Pathak who was held guilty in the common enquiry has been cited. The said incumbent had filed a writ petition WP(C) 4221/2008 wherein this Court had set aside the order of penalty of reduction of one stage in the time-scale-of-pay for four years and recovery of Rs. 75,000/- vide judgment dated 03.10.2013. When the matter was considered further, it was decided by the FCI authorities not to proceed with the matter further which finds mention in an office note contained in File No. VIG.30(File)/NEZ/2008 which the incumbent had obtained under the Right to Information Act, 2005. 75,000/- vide judgment dated 03.10.2013. When the matter was considered further, it was decided by the FCI authorities not to proceed with the matter further which finds mention in an office note contained in File No. VIG.30(File)/NEZ/2008 which the incumbent had obtained under the Right to Information Act, 2005. In fact the relevant portion of the note is extracted in the affidavit-in-reply in paragraph 17 which reads as follows: "In the instant case it is clear from the records that the communication as to how the matter of subsidy was to be dealt with was not communicated to the Field Officers and was not linked to the file for proceeding the bills in question”. 15. The contention of the petitioner is that he is identically placed as Shri Viswanath Pathak, as the letter dated 28.11.1995 was not communicated and therefore cannot be the basis of a change. 16. Shri Borbora also argues that the discrimination meted out to the petitioner is a result of bias as the petitioner in the capacity of an office bearer of the Trade Union had on various occasions raised his voice against the Management and the impugned punishment was imposed only to "settle scores". Further, it is an ironic that after serving 30 years, the dismissal order was served just a day prior to the retirement of the petitioner. 17. The learned Counsel further submits that as a matter of fact, the entire amount in question which have been termed to be financial loss of the Corporation, have been recovered. This important factor which is an utmost relevance had been ignored in the disciplinary proceeding. Shri Borbora also questions the manner of holding the enquiry when the petitioner was not given proper and adequate opportunity to defend himself, starting from denial of relevant copies of the documents, proper inspection etc. Shri Borbora also relies upon two letters respectively dated 22.6.2005 and 5.10.2005 (Annexure U and V of the writ petition). In the first letter dated 22.6.2005, the Senior Regional Manager had written to the Chairman-cum-Managing Director on the subject of payment of HTS. It has been categorically stated that there was no mala fide intention on the part of the Regional Office, so far as following the prescription of calculating HTS, the relevant paragraphs of the aforesaid letter are quoted herein below: “9. It has been categorically stated that there was no mala fide intention on the part of the Regional Office, so far as following the prescription of calculating HTS, the relevant paragraphs of the aforesaid letter are quoted herein below: “9. RO Assam’s intention were further obvious when it defended its stand to the Zonal Office (NE) on the applicability of 1995 circular in response to its letter no. S&S/NEZ/HTS-RTC/Assam/2004/3702 dt 08.02.05 and S&S/NEZ/HTS-RTC/3696 dt 24.02.05. RO Assam intimated to Zonal Office vide its letter no. S&S 4.(129)/2002/pt/ 17.03.2005 that due to the overlapping of the provisions of the circulars dt 28.11.95 and 23.02.01 it drew the conclusion of reimbursement on actual basis restricting the claims with reference to the distance and not with reference to the restriction of ceiling of PDC rates. Had there been any malafide intention on part of RO Assam, it have started recalculating the bills as per the conditions imposed by 1995 circular. 10. However when Hqrs vide its letter no. 4/1/Assam/2005/Sales.11 dt 04.04.05 conveyed the decision of the Ministry to scrutinize the IITS payments made to AP Government since 03-04 afresh keeping in the mind the conditions imposed in the circular dt 28.11.95, RO Assam promptly rechecked the bills and adjusted the excess amount of Rs. 166.89 from the pending bills of AP Government. 11. Assam Region on its own also scrutinized the payments made in the year 02-03 and adjusted the excess amount of Rs. 8.26 crores from the pending bills of AP Government. This development vividly also reflects the forthright intention of Assam Region. 12. Due to the recovery of entire excess amount there is no financial loss to the Corporation. 15. The detailed position as enumerated above will corroborate the stand that RO Assam since the beginning was very much alert on the issue of reimbursement of HTS/RTC to AP Government and taking all precautions in releasing payments. RO Assam took steps to safeguard the interest of all Corporation and if it would have been aware about the applicability of circular dt 28.11.95 deriding the communication dt 23.02.01 there would not have been any question of excess payment from its side. As explained vide the DO Letter of even no. dt. 07.04.05, the development culminating from the directions of Govt. As explained vide the DO Letter of even no. dt. 07.04.05, the development culminating from the directions of Govt. of India in the recovery /adjustment of excess payment resulting from the earlier action due to misinterpretation of the circulars is only a bonafide error. Apart from being a Government to Government transaction, there has been no loss caused to the Corporation.” 18. In the subsequent letter dated 5.10.2005, the Chairman-cum- Managing Director who is the highest authority of the respondent- corporation wrote to the Secretary, CA, F&PD, New Delhi, the relevant extracts of which are quoted herein below: “I reiterate that though the release of excess payment on account of HTS to the State Government Arunachal Pradesh has been established through the Special Audit, but the same needs to be viewed along with the fact that all such payments stand realized from the State Government thus inflicting no pecuniary loss to the Corporation. Moreover, the replies of the Officer confirm that the excess payment was basically due to wrong interpretation of the instructions of the Ministry and not with any intent to deceive.” 19. Shri Borbora lastly submits that the petitioner had only surpassed the age of superannuation the very next date after imposition of penalty and therefore the question of his reinstatement will not arise but however if the extreme penalty of dismissal form service is set aside, he would be entitle d to post retirement benefits. 20. Per contra, Shri P.K. Roy, learned counsel for the FCI submits that the writ court would not act as a court of appeal and the penalty imposed being based upon the subjective satisfaction of the disciplinary authority, there is very little scope for interference. No glaring or blatant violation of the law relating to affording of adequate and reasonable opportunity to the delinquent being cited, this Court would refrain from interfering with such order of penalty. 21. Replying on the specific grounds of challenge, Shri Roy, learned Counsel submits that appointment of Shri D. Roy Choudhury as the Presenting Officer had to be done as a matter of necessity and when the incumbent (Shri D. Roy Choudhury) accepted such offer, the Management could not be put to any blame only because of the fact that the said incumbent had earlier consented to be the defence assistant of the petitioner and that there is no legal bar in such action. Shri Roy, learned Counsel accordingly contends that the submission of the petitioner that the entire proceeding was vitiated because of such appointment of the delinquent officer is without any basis. 22. Regarding the communication dated 28.11.1995, though the nomenclature ‘Circular’ does not appear on the body of the same, it has all the traits of a ‘Circular’ and the same was duly circulated for its implementation. Therefore, the petitioner cannot claim any benefit by advancing the plea of being ignorant of the same. The learned Counsel further submits that the circulation or otherwise of the communication dated 28.11.1995 was not even an issue and therefore the petitioner was precluded from taking the defence of ignorance of the same. 23. In the similar lines, Shri Roy submits that so far as the other three charges which had been held to be proved are concerned, those are based on records and the allegation was of violation of the laid down instructions and in view of the fact that factually such violation had taken place, there was no room for the petitioner to escape. 24. As regards the ground of discrimination, Shri Roy, learned Counsel for the respondent corporation while refuting the same has submitted that disciplinary measures were taken against all involved officers/ employees including senior officers involved in the transaction in question and penalty was imposed which was proportionate to the nature of the charges and the petitioner, cannot per se claim a lesser penalty. 25. In fact Shri Roy, learned counsel has produced before this Court a chart prepared by the respondent-corporation regarding the penalties imposed on different officers on the same issue. However, a close scrutiny of the said charge would go to show that the extreme penalty of dismissal/removal had been given to only the petitioner and another Officer i.e. Sri D.N. Hazarika, AG-I(Gen.)(Tezpur). However for the rest of almost 43 officers, no such extreme penalty had been imposed. Though two officers were imposed the penalty of compulsory retirement, the terminal benefits were not forfeited and only a token recovery was directed to be made. To be more specific, for Shri Dimbeshwar Bora, Manager (G)(North- East) token recovery was Rs. 3,02,000/- and for Gangadhar Bora AG-I(D)(Tezpur) the recovery was Rs. 5,530/-. 26. Though two officers were imposed the penalty of compulsory retirement, the terminal benefits were not forfeited and only a token recovery was directed to be made. To be more specific, for Shri Dimbeshwar Bora, Manager (G)(North- East) token recovery was Rs. 3,02,000/- and for Gangadhar Bora AG-I(D)(Tezpur) the recovery was Rs. 5,530/-. 26. A specific reference to the case of one Shri Chandra Gogoi, Manager (Accounts) who was also in Dibrugarh district can be made wherein the penalty imposed was reduction in the time-scale-of-pay by three stages for 2 years and such reduction will not have the effect of postponing the future increments of pay and a token recovery of Rs. 1,50,000/- to be recovered in 3 days instalments. Similar is the case of Shri Mukul Chandra Das, Manager (Accounts) with identical penalty as that of Sri Chandra Gogoi. It may be noted that the aforesaid two incumbents are identically placed like that of the petitioner and they were all in the Dibrugarh Office. 27. As regards the communications dated 22.6.2005 of the Senior Regional Manager and 5.10.2005 of the CMD of the respondent- corporation, Shri Roy submits that apart from those being inter-office communication, unless the appropriate authority accepts the same, the contents of the same will not have any binding effect and therefore, the letters are not relevant in adjudication of the present lis. In any case, these two letters were not relied upon by the petitioner in the enquiry and therefore there were no occasion of either the Enquiry Officer or the Disciplinary Authority to consider the same. Shri Roy submits that in the meantime, sufficient time has also passed since the petitioner was dismissed from service and therefore in any case, no interference is called for. 28. As regards the fact that the excess payments have been recovered, Shri Roy contends that even temporary misappropriation is a misconduct and mere recovery will not remove the culpability of the petitioner. Shri Roy also produces the records of the proceedings in originals in two numbers of files. 29. The rival contentions of the learned counsels have been duly considered and the records of the case have also been carefully perused. 30. Shri Roy also produces the records of the proceedings in originals in two numbers of files. 29. The rival contentions of the learned counsels have been duly considered and the records of the case have also been carefully perused. 30. As stated above, while adjudicating a matter pertaining to a disciplinary proceeding this Court in exercise of its extraordinary powers under Article 226 will not generally act as an appellate court and it is a settled law that it is only the decision making process which will be scrutinised and not the merits of the decision. Scope of interference in judicial review is also there when the penalty in question appears to be shockingly disproportionate to the nature of the charges. 31. In the instant case, the charges revolved around are violation of instructions while calculating payment for HTS reimbursement. The petitioner was charged in the capacity of Manager (Accounts) which admittedly is not the ultimate authority in determining the HTS reimbursement. There exists a three tier scrutiny at various levels including a super checking done at the Regional Office. If at all any violation was made by the petitioner regarding the method of calculation, such violation ought to have been noted and rectified at higher level of checking which includes the super checking. In absence of clear charge of connivance amongst different levels of officers coupled with the fact of the explanations given by the Senior Regional Manager and recommendation made by the CMD who is the highest authority of the respondent-corporation, no mala fide as such can be attributed to the petitioner. It can at most be a case of ignorance of the instructions said to be in force for which, the penalty of dismissal from service, which is extreme in nature does not seem to be proportionate. Recovery of the amount in question would not have been a material as temporary misappropriation can itself can be a charge. However, in absence of a specific charge of misappropriation, recovery of the amount in question is a relevant factor which ought to have been considered by the disciplinary authority. Though such consideration, per se may not absolve the petitioner from the entire liability, it would certainly be relevant for deciding the quantum of punishment. However, in absence of a specific charge of misappropriation, recovery of the amount in question is a relevant factor which ought to have been considered by the disciplinary authority. Though such consideration, per se may not absolve the petitioner from the entire liability, it would certainly be relevant for deciding the quantum of punishment. The long period of unblemished service of about three decades have also been ignored by the respondent authorities which is also a relevant factor in deciding the quantum of penalty to be imposed upon the petitioner. 32. The case law cited by Shri P.K. Roy, learned counsel for the respondents, reported in (2017) 2 SCC 528 ( Chief Executive Officer v. K. Hanumantha Rao & Another) may not be of much help. 33. In the case of K. Hanumantha Rao (supra) the allegation of dereliction of duties of the delinquent in that case led to disproportion of funds of the Society. The Hon’ble Apex Court has also held that failure on their part to take action against the top management would not be discriminatory as the duties were not identical. However in the instant case it is seen that the duties in scrutinising and passing the bills were not in any manner less of the officers in higher levels than the petitioner and further, there was no misappropriation and rather payment of excess amount which was ultimately recovered. The Apex Court has also laid down that interference by this Court in matters of penalty is justified when the penalty is wholly disproportionate so as to shock the conscience of this Court. 34. Shri Roy had also relied on the case reported in (2013) 10 SCC 106 (The Deputy Commissioner, KVS v. J. Hussain). In that case, the Hon’ble Apex Court had laid down that the scope of judicial review in matters of disciplinary proceeding is limited. However, it is seen that the Hon’ble Apex Court has also observed that when the penalty is shockingly disproportionate, outrageous, in defiance of logic or lacking in good faith the same offended Article 14 of the Constitution of India. The contemporaneous facts, more particularly the penalties imposed upon host of other officers/employees in comparison with the penalties imposed upon the petitioner clearly reflects malice and lack of bona fide. 35. The contemporaneous facts, more particularly the penalties imposed upon host of other officers/employees in comparison with the penalties imposed upon the petitioner clearly reflects malice and lack of bona fide. 35. As regards interference with the quantum of penalty one may gainfully refer to the observation of Hon'ble Justice B.L. Hansaria in the case of B.C. Chaturvedi v. Union of India & Others, reported in (1995) 6 SCC 749 that the writ court in an appropriate case has the powers to mould the relief especially in cases where the penalty appear to be wholly disproportionate. Respectfully following such proposition of law, this Court is of the opinion that the impugned penalty in question of dismissal of service of the petitioner from the post of Manager (Accounts) vide order dated 27.03.2008 which had been concurred by the appellate order dated 5.8.2008 is absolutely harsh, utterly disproportionate to the gravity of the charge which shocks the judicial conscience and accordingly the same is set aside. As a result, the respondent-corporation would reconsider the case of the petitioner so far the same relates to imposition of penalty which are prescribed in Regulation 54 of the FCI (Staff) Regulations, 1971 which is under Section 5 relating to Discipline and Appeal Regulations. Though the respondent authorities would be at liberty to impose any other penalty, it is made clear that penalty to be imposed cannot be a penalty of dismissal or removal or any such penalty which entirely forfeits the post retirement benefits of the petitioner. Considering the fact that the petitioner had already crossed the age of superannuation and therefore there is no question of reinstatement on imposition of an appropriate penalty, the post retirement benefit of the petitioner be calculated appropriately and the same may be released to him. The aforesaid exercise of reconsideration be undertaken and completed within a period of 2 (two) months from today. 36. The original files produced by Shri P.K. Roy, learned counsel for the respondent-corporation is returned to him. 37. The writ petition is accordingly disposed of with no order as to costs.