JUDGMENT
B.H. Marlapalle, J.
1. The petitioner has assailed the order of punishment dated 6.12.1989 passed by the Disciplinary Authority and subsequent order dated 17.9.1990 enhancing punishment by the Appellate Authority under the service rules applicable.
2. The factual matrix of the case, can be briefly, set-out as under : The petitioner was appointed as A.P. Cotton Grader on 11.7.1979 and posted at Phaltan Zone in District Satara. He was promoted as J.R Grader on 11.7.1980. He came to be transferred from Phaltan Zone to Nanded Zone on 6.2.1987. On the very next day he was posted at Umari Sub-zone. On 1.1.1988 he was transferred from Umari to Karkheli Centre under Umari Sub-Zone in district Nanded.
3. At the relevant time, one Shri M.J. Patil, J.R. Grader was posted at Hadgaon and he remained absent from 16.2.1987 to 18.2.1987 and therefore, the petitioner was transferred to Hadgaon during this period.
4. On 12.4.1988 the Divisional Manager, Nanded, visited Karkheli Centre and noticed certain deficiencies in the cotton procured at the said centre. The Divisional Manager noted that the grading of cotton collected was faulty and higher grading was dishonestly given by the petitioner.
5. On 19.4.1988, a charge-sheet cum-show cause notice was issued to the petitioner. By communication dated 30.4.1988, the petitioner was informed that departmental inquiry would be initiated against him. He submitted his explanation to the Enquiry Officer on 6.5.1988. A supplementary charge-sheet was issued on 24.6.1988. The inquiry notice was given to the petitioner and it appears that he failed to remain present before the Enquiry Officer on some dates.
6. On 3/16.1.1989 the petitioner was issued a show-cause notice proposing punishment of dismissal from service. A copy of the inquiry report was not supplied to the petitioner though he was called upon to submit his explanation within 10 days regarding the proposed punishment. However, the Enquiry Officer’s report was made available to the petitioner subsequently vide communication dated 5.5.1989.
7. The Enquiry Officer recorded a finding that (a) the petitioner was guilty of accepting sub-standard quality of cotton in 1987-88 season at Karkheli centre and (b) procurement of sub-standard quality of cotton had resulted in financial loss to the Federation.
8. The petitioner submitted his reply on 12.6.1989 and stated that the proposed punishment would cause manifest injustice to him as he was not guilty of the charges levelled against him. He had questioned the findings of the Enquiry Officer on various grounds including the ground that the Enquiry Officer did not conduct any inquiry proceedings and the inquiry report was submitted without giving any opportunity to him either to cross-examine or examine the witnesses either in support of the charges or in defence of his innocence.
9. Notwithstanding the defence submitted by the petitioner, he was punished by the Disciplinary Authority and the punishment was two-fold namely; recovery of an amount of Rs. 9000/- and disqualification for promotion/selection in the higher grade for a period of three years.
10. The petitioner submitted an appeal against the aforesaid order of punishment of 11.1.1990 to the Managing Committee of the Federation. The appeal remained pending for more than two and half months and therefore, on 2.4.1990 he applied for withdrawal of the same. However, in the meeting held on 9.4.1 990 the Appellate Authority resolved to enhance punishment and issue a show cause notice to the petitioner in that regard. Such a show cause notice was issued on 17.4.1990 stating that the petitioner was guilty of causing financial loss of Rs. 1,96,000/- to the Federation and he was also found to be guilty in another inquiry conducted against Shri M.J. Patil. The punishment proposed was dismissal from service.
11. The Petitioner submitted his detailed reply to the said show cause notice on 24.5.1990. Finally, by order dated 17.9.1990 the Appellate Authority imposed the punishment of dismissal from service.
12. While admitting the petition, prayer for interim relief was refused. Undisputedly, the Federation falls within the ambit of Article 12 of the Constitution.
13. The respondent No. 1 employer has filed an affidavit in reply and opposed the petition. It has obviously defended its action and taken a stand that the punishment enhanced by the Appellate Authority was just, proper and legal and the Disciplinary Authority had taken a lenient view which was not warranted taking into consideration the seriousness of the charges proved against the petitioner. Reliance has been placed on the following decisions of the Apex Court in support of these contentions.
(i) State Bank of India and Ors. v. Samarendra Kishore Endow and Anr., .
(ii) High Court of Judicature at Bombay through its Registrar v. Shashikant S. Patil and Anr., .
14. The petitioner has made personal allegations against the respondent No. 2, who acted as an Enquiry Officer in the departmental inquiry conducted by him against the petitioner. No reply has been filed by the said respondent No. 2 denying the personal allegations made against him. We need not enter into the veracity of the said allegations.
15. The petitioner’s challenge to the impugned orders is on account of (a) the Enquiry Officer did not hold any inquiry proceedings so as to record the evidence of witnesses and subject them to cross-examination by him, (b) the so-called inquiry report was submitted without holding any proceedings and therefore, there was no occasion to evaluate evidence to be brought before the Enquiry Officer in support of the charges as well as innocence of the petitioner, (c) the principles of natural justice were violated and the Disciplinary Authority did not consider these aspects, (d) when the petitioner had applied for withdrawal of the appeal, the application for such withdrawal ought to have been allowed, (e) the Appellate Authority decided to enhance the punishment on extraneous considerations and the report of inquiry held into the charges against Shri M.J. Patil was relied on, though the petitioner was not a party and was not proceeded against in the said inquiry and (f) in any case, there was no justifiable reason to differ with the punishment awarded by the Disciplinary Authority.
16. The correspondence brought on record does indicate that the petitioner was issued notices from time to time to appear before the Enquiry Officer. However, under some or the other pretext the petitioner preferred not to respond to the said notices. The main charge levelled against the petitioner was that he had procured sub-standard cotton and classified it in a higher grade. This charge did not call for examination of any witnesses by the Enquiry Officer in the enquiry proceedings. The Enquiry Officer was required to visit concerned centre, examine cotton stacks and to take out samples from the same. The Divisional Manager during his visit to the centre made a factual inspection regarding the quality of cotton so procured including its grading. The petitioner himself was the Grader and was incharge of the concerned collection centre. He could have remained physically present when the Enquiry Officer was to visit the said centre. However, the petitioner chose otherwise and abstained. If the delinquent officer by his own choice did not appear at the collection centre when called upon by the Enquiry Officer so as to assess the veracity of the charges, he cannot complain of principles of natural justice being breached. Though the Enquiry Officer was an officer from the Federation, he appears to have taken adequate steps to afford a reasonable opportunity to the petitioner to defend himself. For some reasons or the other the petitioner remained adamant. It was in his interest to assist the Enquiry Officer so as to establish his innocence.
17. The Enquiry Officer has given an elaborate report and the findings recorded by him are supported by proper reasons. The samples from the cotton stacks collected by the petitioner were subjected to an expert opinion and it was concluded that the cotton so collected was of substandard quality and it was not of the grade which was given by the petitioner himself. If the cotton is categorised in a higher grade than it actually belongs to, naturally the Federation has to pay more price to the supplier. It has also come in evidence before the Enquiry Officer that the suppliers of cotton were not farmers and they were some traders. Some of these traders were also examined by the Enquiry Officer and their statements were recorded at the spot. They conceded that they were not cultivators of cotton. If that was the case the petitioner ought not to have procured the cotton from the traders who had no supporting documents to verify the quality of cotton so harvested.
18. On overall assessment of the findings recorded by the Enquiry Officer, we are satisfied that the petitioner has guilty of the charges levelled against him. The findings recorded by the Enquiry Officer are not vitiated on any count. The inquiry conducted against the petitioner cannot be faulted with.
19. The next question we are required to consider is the quantum of punishment and whether there was justification for the Appellate Authority to enhance punishment. The Disciplinary Authority had issued the show cause notice and proposed punishment of dismissal. However, on consideration of the reply submitted by the petitioner to the said show cause notice, the Disciplinary Authority, had decided to take a lenient view so as to provide an opportunity for improvement to the petitioner and therefore, decided against imposing punishment of dismissal as was proposed originally. A sum of Rs. 9000/- was sought to be recovered from the petitioner and he has directed to be disqualified for further promotions for a period of three years. There is no dispute that the petitioner’s earlier record of service was spotless.
20. The petitioner submitted an appeal to the Appellate Authority. No action was taken on the same for about two and half months and therefore, he applied for withdrawal of the same. We have gone through the Discipline and Appeal Rules framed by the Federation and under which the petitioner is governed. We have noted that there is no bar from withdrawing such an appeal. If the petitioner had not filed an appeal against the order passed by the Disciplinary Authority, no doubt, under Rule 53 of the Discipline and Appeal Rules, the Appellate Authority had the powers of review/revision against the order passed by the Disciplinary Authority. This power could have been invoked even after the appeal was allowed to be withdrawn. Even otherwise, we have to examine whether there was a case before the Appellate Authority to justify the enhanced punishment contrary to the view taken by the Disciplinary Authority. The Appellate Authority has given emphasis on the findings recorded against the petitioner in the inquiry conducted against Shri M.J. Patil. In the said inquiry the petitioner was admittedly one of the witnesses and no charge sheet was issued against him along with said Shri Patil. A copy of the said report has been submitted before us. The petitioner was sought to be punished without trial which cannot be sustained in law. If the petitioner was found guilty in any other inquiry in which he was a witness, the Federation was free to issue a charge-sheet against him and initiate disciplinary inquiry proceedings as per the Discipline and Appeal Rules. However, he was called as a witness in support of the charges levelled against Shri M.J. Patil and the Enquiry Officer recorded collateral findings against the petitioner though he was called upon to investigate the charges levelled against Shri M.J. Patil.
At the first instance the Enquiry Officer was not justified in doing the same and secondly, it was illegal on the part of the employer to accept such findings against an employee who was not proceeded against under the Discipline and Appeal Rules. It is implied that the Disciplinary Authority was aware of this legal position and therefore, decided to take a lenient view against the petitioner.
21. We are of the considered view that the Appellate Authority fell in gross error in relying on the report of the inquiry submitted against Shri M.J. Patil and disagreeing with the punishment imposed by the Disciplinary Authority in the case of the petitioner, so as to enhance punishment and dismiss the petitioner from service. The order passed by the Appellate Authority is illegal, unjust, improper and therefore, cannot be sustained.
22. Once the order of dismissal is held to be illegal, we are required to consider the issue of granting relief to the petitioner especially when we have upheld the findings recorded by the Enquiry Officer against him.
23. When this petition was heard by another Division Bench consisting of one of us (B.H. Marlappale, J), time was sought for taking instructions for an amicable settlement and accordingly, the Federation had placed before us a proposal formulated by the Managing Director and to be placed before the Managing Committee of the Federation for reinstating the petitioner in service without backwages. The petitioner was not agreeable to this proposal and he, therefore, insisted for reinstatement with all consequential benefits including his salary. The petition is, therefore, heard afresh by us.
The Enquiry Officer has recorded a finding that the petitioner was guilty of causing loss to the extent of Rs. 1,96,000/- to the Federation by his dishonest act. The finding does not show that the loss was on account of human error. The petitioner was an experienced grader and was incharge of cotton collection centre.
24. The Supreme Court in the case of B.C. Chaturvedi v. Union of India and Ors., held that under Article 226 of the Constitution of India the High Court being a Court of plenary jurisdiction has inherent powers to do complete justice between the parties similar to the powers under Article 142 of the Constitution of India. The punishment awarded by the Disciplinary Authority for recovery of only Rs. 9000A does not appeal to our judicial conscience and the petitioner must make good the loss caused to the Federation. We, therefore, deem it appropriate that the petitioner is made to make the said loss good on his reinstatement in service and especially when he is entitled to claim salary for the intervening period. This modification of the punishment will meet ends of justice and would do complete justice between the parties. To mould the relief so as to do complete justice to both the parties, falls in our inherent powers under Article 226 of the Constitution in such a case.
25. In the result, we quash and set aside the order of dismissal dated 17.4.1990 passed by the Appellate Authority of the Federation. We direct the Federation to reinstate the petitioner in service with all consequential benefits including payment of salary, seniority, etc: The petitioner shall refund of Rs. 1,96,000/- to the Federation and the Federation is at liberty to adjust this amount from the arrears of salary payable to the petitioner.
26. Rule is made absolute accordingly but without any order as to costs.