JUDGMENT
Chandramauli Kumar Prasad, J.
1. This application has been filed for issuance of a writ in the nature of certiorari for quashing the order as contained in memo dated 6.7.2004 (Annexure-9), whereby the petitioner has been dismissed from service as a measure of punishment, after a departmental enquiry.
2. Shorn of unnecessary details facts giving rise to the present application are that by order as contained in memo dated 2.1.1999 (Annexure-1) petitioner was put under suspension for the alleged misconduct committed by him in purchase of medicine from Medical Store Depot Kolkata, hereinafter referred to as the Depot, while posted as District Tuberculosis Officer. Thereafter a departmental proceeding was initiated against him and he was served with a memo of charge, which contained the following three charges :
(i) Although the petitioner was not .authorised to purchase medicine directly from Depot, still in violation of the Financial Rules, he placed the purchase order for supply of medicine directly,
(ii) Petitioner did not adhere to the purchase policy of the State Government as contained in departmental letter dated 27.1.1982,
(iii) Spent more money then allocated for purchase of the medicine and thereby committed grave irregularity.
3. Petitioner submitted his explanation dated 29.4.1999 in which he has admitted the allegation made in respect of charge number one in placing the purchase-order to the Depot, directly but his plea was that he had instructed the office to send the purchaseorder through proper channel but later on he came to know that it was set directly to the Depot. In the show cause, petitioner tried to emphasise that the procedural irregularity committed by him was not actuated with motive and in fact the medicine was received and entered in the Store Register.
4. As regards Charge No. II, petitioner’s plea was that purchase order was sent directly to the Depot inadvertantly and for that he had no ill-motive or interest.
5. As regards Charge No. Ill, petitioner denied to have spent the amount on purchase of medicine more than what was allocated but at the same time he stated that in case any mistake had occurred it was on account of lack of knowledge and indiscretion of the office and the petitioner had not committed any mistake intentionally. The Inquiry Officer considered the explanation and submitted his report and found all the charges to have been partly proved. As regards the 1st Charge the finding of the Inquiry Officer is that the purchase order ought to have been sent to the Depot through the Deputy Director, Tuberculosis but was directly sent to the said Depot and for that not only the petitioner but the office Assistant is also responsible. The Inquiry Officer then found that medicine received from the said Depot was entered in the Store Register and in that circumstance, it cannot be said that petitioner had any ill-motive and for the procedural irregularity the concerned Assistant and the petitioner were equally responsible.
6. As regards Charge No. II the Inquiry Officer found that in earlier and later years purchase orders were sent through the Deputy Director but in the financial year in question the purchase order was sent directly to the said Depot, which shows that the petitioner committed the mistake unknowingly and it has not resulted into any financial loss.
7. As regards the third Charge the Inquiry Officer considered the plea that, at the time of placing the order and receipt of the medicine petitioner did not know the price thereof and he was not knowing its procedure. In that light, the Inquiry Officer found the charges to have been proved partially.
8. After the submission of the inquiry report the State Government by notification dated 25.11.1999 revoked the order of suspension and kept the departmental proceeding pending. Later on, by letter dated 17.1.2001 (Annexure-6) petitioner was asked to show cause as to why he be not dismissed from service, inter alia, stating that he had sent purchase order directly for purchase of medicine worth Rs. 1,54,066/- for which he was not authorised. It was further stated that the petitioner had violated the purchase policy of the department and spent more money that what was allocated for its purchase. Petitioner was informed that the Inquiry Officer has found those allegations to be fully/partly proved and accordingly, the State Government had tentatively decided to dismiss him from service. Petitioner filed reply dated 5.11.2001 (Annexure-7). The disciplinary authority by the impugned resolution dated 6th of July, 2004 (Annexure-9) considered the show cause filed by the petitioner and resolved to dismiss him from service.
9. Mr. Ganesh Prasad Singh, Senior Advocate appearing on behalf of the petitioner submits that the Inquiry Officer in its report had found the petitioner as also the concerned Assistant equally responsible and hence the action of the respondents in not proceeding against him and punishing the petitioner is discriminatory in nature and this vitiates the impugned order. In support of the submission, he has placed reliance on a judgment of his Court in the case of Shailendra Kumar Ojha v. State of Bihar, 2004 (4) PLJR 272 and my attention has been drawn to paragraphs 12 and 13, which read as follows :
“From the materials on record, it appears that a mob consisting of more than 300 persons had participated in the incident, which occurred on 6.11.2000 and out of them only nine were identified, who had taken leading roles, and, accordingly, all were made accused in the criminal case and they were put on trial. It further appears that the appropriate authority on the same day, i.e. on 6.11.2000, took a decision to initiate departmental proceedings for their dismissal from services, but instead of doing, so the petitioner alone was proceeded against under special provisions of Article 311(2)(b) of the Constitution, whereas others were merely put under suspension and subsequently reinstated with all consequential benefits.
Since the appropriate authority had taken a decision to proceed against all those persons in the same manner, the petitioner alone would not have been proceeded against under the special provisions, as laid down under Article 311 (2) (b) of the Constitution. Therefore, the action of the authority concerned, as taken vide Annexure 3 amounts to discrimination, as the equals have been treated unequally”.
10. JC to AAG II however, submits that the petitioner was District Tuberculosis Officer and was head of the office at the time when the purchase order was illegally sent to the said Depot for supply for medicine, petitioner cannot be let off only on the ground that in the misconduct committed by him, the Assistant had also role to play.
11. Having considered the rival submission, I do not find any substance in the submission of Mr. Singh and the decision relied on is clearly distinguishable. Petitioner undisputedly was the head of the office from where the purchase order was sent directly to the said Depot signed by the petitioner himself and, as such, the impugned order of punishment cannot be held to have been vitiated only on account of the fact that Assistant in the office had also the role to pay. In the case of Shailendra Kumar Ojha (supra) the misconduct alleged against all the persons were one and the same and the authority decided to initiate departmental proceeding against all such employees but later on, confined, it to only one employee who was ultimately chosen for dismissal from service and in that background this Court held the action to be discriminatory which is not the position here.
12. Mr. Singh, then contends that Inquiry Officer has submitted its report without examination of any witness. He emphasises that the Assistant in the office ought to have been examined in the departmental enquiry and his non-examination has vitiated the impugned order. In support of the submission reliance has been placed on a decision of the Supreme Court in the case of Town Area Committee, Jalalabad v. Jagdish Prasad and Ors., AIR 1978 SC 1407, and my attention has been drawn to the following passage from Paragraph 1 of the judgment which reads as follows :
“A perusal of this notification would clearly show that the notification undoubtedly contemplated a full and complete opportunity to be given to the delinquent employee before any action is taken against him. It may not have been necessary to apply the provisions of Article 311 of the Constitution, strictly, nevertheless the principle of audi alteram partem had to be complied with. A reasonable opportunity is a term of well known legal significance and includes an opportunity given to the employee to cross-examine the witnesses examined against him and to lead defence in support of his version. What the department did in the present case, was to submit a charge-sheet against him, get his explanation and thereafter it straightaway passed an order of dismissal”.
13. JC to AAG II however, contends that the petitioner submitted his show cause in which in fact he did not deny the charges levelled against him but he pleaded ignorance and put blame in the office and asserted his bona fide and in such circumstances, according to the learned counsel, no witness was required to be examined. As regards, the petitioner’s plea that Assistant in the office ought to have been examined, counsel representing the contesting respondents contends that in case the petitioner thought his examination necessary, nothing prevented, him from examining the said witness on his behalf and he having failed to do the same, the order impugned cannot be said to be illegal on that count.
14. I do not find any substance in this submission of Mr. Singh also and the authority relied on in no way supports the case of the petitioner. In the present case the allegation against the petitioner is that he placed the purchase order directly to the said Depot which is in violation of the purchase policy of the department and further purchase was made for amount more than allocated for the said purpose. Petitioner in fact did not deny the factual component of the allegation but tried to explain that it had occurred on account of mistake, inexperience and indiscretion of the office and had no bad intention or motive for the same. I am of the opinion that examination of the witnesses in every departmental enquiry is not necessary and it shall depend upon the nature of misconduct alleged and defence put forward by the delinquent employee in regard to the charge. It cannot be said as an absolute proposition of law that the Inquiry Officer cannot submit his report unless and until witnesses are examined by the employer. In my opinion, in case the petitioner considered examination of the Assistant in the office to be relevant for the adjudication of the misconduct alleged against him, nothing prevented him from examining him as a witness on his behalf. It is not his case that he ever requested for his examination which was declined. In such circumstance, I am of the opinion that non-examination of the witness shall not vitiate the enquiry and the consequential action.
15. Reverting to the authority of the Supreme Court in the case of Town Area Committee (supra), same in no way supports the case of the petitioner. In the said case the employer served the charge on the delinquent employee, got his explanation and straightaway passed the order of dismissal, which was found to be in violation of the principle of audi alteram partem. This is not the case here and, as such, said decision in no way supports the petitioner’s case.
16. Mr. Singh, then contends that although the Inquiry Officer has held the petitioner partly guilty of all the charges but the disciplinary authority without assigning any reason has given the second show cause notice against the proposed punishment, which is illegal in the eye of law and hence the ultimate order of dismissal from service is vitiated on that count. In do not find any substance in those submission of Mr. Singh also. There is no difficulty in accepting his broad submission that in case the disciplinary authority disagrees with the finding of the Inquiry Officer it has to assign tentative reasons for disagreement, furnish the same to the delinquent employee and ask his show cause but in a case in which the disciplinary authority accepts the finding of the Inquiry Officer, in that case no such opportunity is required to be given and the only requirement is to make available the delinquent employee the inquiry report, intimate the proposed punishment and seek his reply and then pass the final order. Here in the present case the disciplinary authority had found all the charges levelled against the petitioner to have been proved but at the same time it has observed that the Assistant in the office is equally responsible and the misconduct has been committed on account of lack of experience and can be said to be a case of indiscretion but not ill-motive. In fact disciplinary authority had not disagreed with the finding of the Inquiry Officer as the finding recorded by it was adverse to the petitioner and accordingly, it cannot be said that the disciplinary authority and disagreed with the Inquiry. Officer.
17. Mr. Singh lastly submits that the punishment or dismissal from service is disproportionate to the gravity of allegation and, as such, same requires to be interfered with by this Court in exercise of its writ jurisdiction. He emphasised that there being no financial loss to the State, the extreme punishment of dismissal from service ought not to have been inflicted. In support of the submission reliance has been placed on a decision of this Court in the case of Kailash Nath Gupta v. Enquiry Officer, , in which it has been held as follows :
“In the background of what has been stated above, one thing is clear that the power of interference with the quantum of punishment is extremely limited. But when relevant factors are not taken note of, which have some bearing on the quantum of punishment, certainly the Court can direct reconsideration or in an appropriate case to shorten litigation, indicate the punishment to be awarded. It is stated that there was no occasion in the long past service indicating either irregularity or misconduct of the appellant except the charges which were the subject matter of his removal from service. The stand of the appellant as indicated above is that though small advances may have become irrecoverable, there is nothing to indicate that the appellant had misappropriated any money or had committed any act of fraud. If any loss has been caused to the Bank (which he quantifies at about 46,000/- that can be recovered from the appellant. As the reading of the various articles of charges go to show, at the most there is some procedural irregularity which cannot be termed to be negligence to warrant the extreme punishment of dismissal from service”.
18. I do not have the slightest hesitation in accepting the broad submission of Mr. Singh that this Court possesses jurisdiction to interfere with the quantum of punishment and in exceptional cases to indicate the punishment to be inflicted on the delinquent employee but sine qua non for the exercise of this power is that the punishment is disproportionate to the gravity of allegation.
19. Scope of judicial review on the punishment inflicted by the employer on a delinquent employee is well known. It is well settled that the punishment imposed by disciplinary authority ordinarily should not be disturbed by the Court exercising the power of judicial review except when after examining all the relevant factors the punishment is found grossly or shockingly disproportionate to the gravity of allegation. Even in the case falling in this category i.e. where it is found that the punishment imposed is shockingly disproportionate, this Court may remit the case to the disciplinary authority for reconsideration on the quantum of punishment. However, this Court in order to shorten the litigation may in the facts of the given case direct for imposition of a particular punishment. In the background of aforesaid proposition of law when I consider the case of the petitioner, I am of the opinion that the misconduct alleged and proved is of such a serious nature that the punishment imposed cannot be termed to be shocking to the conscience of the Court or disproportionate to the gravity of allegation. Petitioner was a District Tuerbculosis Officer and he acted beyond his authority by placing the purchase-order directly to the Depot. Not only this, he has placed purchase-order for more than the amount allocated for such a purpose. In case these things are taken lightly, the whole budget allocation of the State would be topsy turvy leading to financial chaos. In my opinion, it is no defence to say that no loss had resulted when the delinquent employee acted without authority. The view which I have taken finds support from the decision of the Supreme Court in the case of Chairman and Managing Director, United Commercial Bank v. P.C. Kakkar, in which it has been held as follows :
“A Bank Officer is required to exercise higher standards of honestly and integrity. He deals with the money of the depositors and the customers. Every Officer/employee of the bank is required to take all possible steps to protect the interests of the bank and to discharge his duties with utmost integrity, honesty, devotion and diligence and to do nothing which is unbecoming of a bank Officer. Good conduct and discipline are inseparable from the functioning of every officer/employee of the bank. As was observed by this Court in Disciplinary Authority-cum-Regional Manager v. Nikunja Bihari Patnaik it is no defence available to say that there was no loss or profit resulted in case, when the officer/employee acted without authority. The very discipline of an Organisation more particularly a Bank is dependent upon each of its officers acting and operating within their allotted sphere. Acting beyond one’s authority is by itself a breach of discipline and is a misconduct. The charges against the employee were not casual in nature and were serious. These aspect do not appear to have been kept in view by the High Court”.
20. In the result, I do not find any merit in this application and it is dismissed accordingly, but without any order as to cost.