IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Writ Petition No.10966 of 1989 (O&M)
Date of decision:27 .04.2011
M.S.Sapra ....Petitioner
versus
The Managing Director, Food Corporation of India, Head Quarters, 16-
20, Barakhamba Lane, New Delhi and others. ....Respondents
II. Civil Writ Petition No.11623 of 1989 (O&M)
A.K.Behal ....Petitioner
versus
The Managing Director, Food Corporation of India, Head Quarters, 16-
20,. Barakhamba Lane, New Delhi and others. ....Respondents
CORAM: HON'BLE MR. JUSTICE K. KANNAN
----
Present: Mr. Vivek Sharma, Advocate, for the petitioner in CWP
No.10966 of 1989.
Mr. G.S.Bawa, Advocate, for the petitioner in CWP
No.11623 of 1989.
Mr. B.S.Wasu, Advocate, for the respondents.
----
1. Whether reporters of local papers may be allowed to see the
judgment ? No.
2. To be referred to the reporters or not ? Yes.
3. Whether the judgment should be reported in the digest ? Yes.
----
Civil Writ Petition No.10966 of 1989 (O&M) -2-
K.Kannan, J.
1. Both the cases are inter-related arising out of a same
transaction. The writ petitioners had been named as having been guilty
of serious misconduct resulting in the loss of 200 bags of foodgrains
from the Food Corporation of India. The petitioner in CWP No.10966 of
1989 was an Assistant Grade-I in depot of the Food Corporation of India
at the relevant time and the petitioner in CWP No.11623 of 1989 was a
subordinate under him. In a surprise inspection carried out by Shri
S.S.Grewal, Assistant Manager (Vigilance), it was alleged that 200 bags
of paddy PR106 variety were found missing and articles of charges had
been levelled against both the petitioners.
2. In the charges issued to Mr.M.S.Sapra, the petitioner in
CWP No.10966 of 1989, the principal allegations were that (i) he had
misappropriated 200 bags of paddy, (ii) he had not verified the entries
made on 24.01.1984 in the stock wise and shed wise registers, and (iii)
he had deliberately showed himself as absent on that day by making
corrections in the official records. The charges against Shri A.K.Behal,
who is the petitioner in CWP No.11623 of 1989, were substantially the
same in relation to the loss of grains and it was stated that (i) he had
misappropriated 200 bags of paddy and (ii) he had not produced inward
and outward gate passes at ARDC Kilaraipur but remained absent on
duty from 16.04.1986.
3. A domestic enquiry was constituted and on the basis of the
report which was, however, not communicated to the petitioners, the
disciplinary authority passed orders of removal from service and other
Civil Writ Petition No.10966 of 1989 (O&M) -3 –
punishments. There had been an appeal and review against these
decisions and on a direction from this Court through a writ petition filed
by Mr. M.S.Sapra, the authority was directed to dispose of review
application filed by Mr. Sapra. On a review so undertaken by the
competent authority from the original order of removal from service, the
findings had been modified exonerating him from the charges of
misappropriation and for alleged alteration of official records and found
him guilty only for one charge namely that he had not verified the stock
wise and shed wise entries that had resulted in the loss to the Food
Corporation of India. In so far as the case relating to Mr. Behal was
concerned, the charges as found already as proved continued and while
Mr. Behal was dismissed from service, Mr. Sapra had been served with
three types of punishments: (i) reversion from the post of AG-I(D) to
AG-II(D) in the minimum of times scales of 380-640, and (ii) forfeiture
of seniority and fixation of the same in the lowest position in the
seniority list of AG-II(D). Even apart from the above two punishments,
he had also been inflicted with the treatment that from the date of
dismissal till the date when he rejoined the duty, it be considered as non
duty period. The findings entered by the disciplinary authority and the
appellate authority are challenged in both the writ petitions.
4. The focal area of concern is whether the management had
proved that there had been a loss of 200 bags of paddy as charges against
both the employees. If the contention of the petitioners were to be
accepted that there had been no theft at all or at any rate the said fact had
not been established, then it will have immediately a bearing on the
Civil Writ Petition No.10966 of 1989 (O&M) -4-
ancillary charges of whether there was any dereliction of duty in not
maintaining the registers by Mr.Sapra. The issue that stands for
consideration immediately is whether there had been a proof of the
charge of the loss of 200 bags of paddy.
5. It is on the alleged proof of the loss of paddy that a
punishment of removal from service has been inflicted on the petitioner
Mr. Behal in CWP No.11623 of 1989. The learned counsel for the
petitioner points out to the fact that the alleged loss was said to have
been detected by Mr. Grewal when he found that there was a discrepancy
between two registers namely, the stock wise, shed wise and muster
ledger and daily issued statements maintained by Mr. Behal showed that
600 bags of paddy had been issued to a party whereas as per the gate
pass and outward register, a total of 800 bags of paddy had been issued
by the Food Storage Depot (FSD) to the party. This discrepancy of 200
was said to constitute the theft of 200 bags from FSD.
6. The theft had been denied and it was contended that the
entry of 800 bags of paddy in the gate pass as per the gate pass and
outward register, was wrong. When both the employees were denying
that there had been any such theft, the primary duty would be, therefore,
to establish that there had indeed been a loss of 200 bags of paddy. This
could have proved by an actual verification in the stocks available in the
FSD to find that there had been 200 bags of paddy which had fallen
short. Another method of proof would have been to examine the person,
who was manning the gate and issuing gate passes and outward register
to say that there had been actually a passage of 800 bags of paddy
Civil Writ Petition No.10966 of 1989 (O&M) -5-
through the gate. In either way, the proof of actual loss would have been
possible either by physical verification or by examination of person, who
had seen that 800 bags of paddy had passed through the gate. Strangely,
in this case, both these aspects had not been established at all. The
Enquiry Officer did no more than a finding of discrepancy between the
shed wise register and the gate passes to come to the conclusion that
there had been a loss of 200 bags.
7. The learned counsel for the employee points out that one
Mr. A.S.Dhillon, who was working at FSD, Kilaraipur, had been
examined by the management to say that he was present in the depot on
25.01.1984 and that he had seen the gate passes P12 and P16.
Significantly, the person, who wrote the gate passes themselves had not
been examined but even his evidence was merely to the following
effect:-
“…….. I do not know how much time is consumed in the
process of preparation of 200 bags. It is not possible to
prepare extra bags by collecting the grains for 200 bags.
No AG-I or AG-II in the godown can make up 200 bags.
The watchman standing at the gate cannot count the loaded
truck.”
His evidence was, therefore, not sufficient to find that 800 bags of paddy
had been transported out of the depot. One P.S.Bali, A.M.(D), FSD,
Kilaraipur, who was said to have seen the registers had given the
following statement:-
“…….On scrutiny of the break up of paddy issued from FSD
Civil Writ Petition No.10966 of 1989 (O&M) -6-and hired godown Kilaraipur, it was observed that in stock
wise, shedwise register of FSD 600 bags paddy PR 106
have been issued to party whereas as per gate pas and
outward register a totallying 800 bags paddy PR 106 have
been issued accordingly. I sent a report dated 14.8.84 to
the D.M.F.C.I. Ludhiana. I confirm the entry in gatepasses
and outward register to be correct. On 24.1.84 I was on
tour at FSD Gill Road Ludhiana being incharge of FSD Gill
Road. No short/excess have been pointed out by the
P.V.Squad till date in respect of paddy stored in FSD
Kilaraipur.”
His evidence cannot be relied for any more than the actual discrepancy
found in the two registers. Whether there existed a deficiency of 200
bags of paddy at FSD cannot be seen through this record. Mr. Grewal
had also given evidence and he had stated as follows:-
“…..On scrutiny of the record I noticed that 600 bags of
paddy were issued to the party whereas as per gate pass
outward register its number was 800. There was overall
difference of 200 bags issued from the FSD with that of gate
passes and outward register. The entries in the gate passes
and gate outward register differ with the entries of
stockwise register. I did not check up empty bags physically
but I checked the account thereof. I do not know whether
paddy was issued on DFSC pattern on FCI pattern.”
Civil Writ Petition No.10966 of 1989 (O&M) -7-
He has also spoken about only the fact that there existed discrepancies in
the registers, but he had not himself physically verified whether there had
been a loss of 200 bags of paddy or not.
8. It was on the basis of the above extracted evidence and that
the Enquiry Officer found the charge of the actual loss of 200 bags of
paddy as having been established to find Mr. Behal as guilty and to
justify the disciplinary action to dismiss him from service. It was again
this evidence that was found sufficient to hold that Mr. Sapra had failed
to properly maintained registers and that he was guilty of dereliction of
duty.
9. The extent of judicial review of decisions in departmental
proceedings are reasonably well known. A Court does not sit as a Court
of appeal and it has to only ensure that the procedure as established by
law has been duly followed and the decision follows an obvious
inference of the evidence adduced before the fact finding authority. It
may not at all times be the sufficiency of evidence that will be called in
question but the ultimate decision will be considered in the light of
whether there existed any evidence at all to support the findings.
Keeping the above well laid out precepts in background, I find that in
this case there is absolutely no evidence at all to support the ultimate
finding that there had been a loss of 200 bags of paddy. If the whole
case was to be decided only on what was contained in the registers
without any cross verification of what was contained in the registers by
physical appraisals of the stocks, then the charge ought to have been
different that the entries were not properly made in the respective
Civil Writ Petition No.10966 of 1989 (O&M) -8-
registers. If the charge, however, is that there arose a loss of 200 bags of
paddy by one or the other officer being guilty of fraudulent removal for
personal aggrandizement, then there ought to be proof that what was
reflected in the registers was verified and found to be wrong. If 200 bags
of paddy had gone missing and any officer was found to be responsible,
such a finding cannot be rendered without actually making a physical
verification for 200 bags of paddy were missing or by examining the
person at the gate, who had issued the pass that he had verified that 800
bags of paddy had been transported through 5 vehicles that went past the
gate. In this case, at the pre-enquiry stage, a statement was said to have
been recorded from the watchman Harbans Lal that 800 bags were
discharged through 5 trucks but he was not himself examined and the
statement itself was taken as affording proof that 800 bags had gone
from the gate. This assumes significance because Mr. A.S.Dhillon
admitted in the cross-examination before the Enquiry Officer that a
watchman standing on the gate cannot count the loaded truck and,
therefore, it was required to be explained how the watchman had given
the statement.
10. If there had been no evidence at all with reference to the loss
of 200 bags either through the actual physical verification or through the
evidence of the witnesses, the findings that came to be passed that Mr.
Behal was responsible was not justified. It was sought to be buttressed
by the fact that he was questioned whether he had anything to say and
Mr. Behal is reported to have had that he had issued 5 gate passes
containing 160 bags each and the watchman’s entry was only on the basis
Civil Writ Petition No.10966 of 1989 (O&M) -9-
of such passes. He had also explained that after the issue of the gate
passes, the party had requested to issue bags from the same godown from
where some other bags had been issued and so as per the request, he had
issued 600 bags from the godown which was under his charge and 200
bags from the other godown. This was a manner of explanation as to
how all the 800 bags of paddy did not go from the godown under his
supervision. The Enquiry Officer also held that since Shri S.S.Grewal
and Mr.A.S.Dhillon had both stated that they had found a discrepancy in
the entries between the two registers, the burden of proof was on the two
charged officers to say that they had not been responsible for the loss of
the stock. This observation also is a wrong statement of law for the
burden of proof never shifts. If the officer was explaining that 600 bags
of paddy alone had been seen from the godown under his control and
another 200 bags of paddy had gone from yet another godown, it was
absolutely essential to find whether such a statement was correct or not
and that 800 bags of paddy had not left from the godown under the
control of Mr. Behal and Mr. Sapra.
11. On a point of law, the contention on behalf of the petitioners
was that they had not been given the copy of the Enquiry Officer’s report
and, therefore, the ultimate order finding them guilty was vitiated. It
must be noticed that in the case of Mr. Sapra after a direction from this
Court for examination of his case for review, the disciplinary authority
dealt with the case on the basis of objection given by the charged officer
to the Enquiry Officer’s report. Consequently, at the relevant time before
a decision was taken by the disciplinary authority, the charged officer
Civil Writ Petition No.10966 of 1989 (O&M) – 10 –
had the benefit of meeting the findings of the Enquiry Officer and,
therefore, he could not have been prejudiced in any way. As regards the
charges against Mr. Behal, the Enquiry Officer had given a report on
16.07.1987 and the order of the disciplinary authority was passed on
13/27.08.1987. The disciplinary authority proceeded to dismiss him
from service by the impugned order and it was only after pronouncement
of this order at the time of preferring the appeal, Mr. Behal had obtained
a copy of the Enquiry Officer’s report to assail the finding. The
disciplinary authority had definitely denied to Mr. Behal a sufficient
opportunity to point out as to how the Enquiry Officer’s report was
faulted. As far as Mr. Behal was concerned, he was clearly prejudiced by
not being supplied the copy of the Enquiry Officer’s report.
12. The fact of non-supply of the Enquiry Officer’s report and
the issue whether such a lapse would constitute a violation of natural
justice was dealt with by the Hon’ble Supreme Court in a Constitution
Bench in Managing Director, ECIL, Hyderabad Versus B. Karunakar-
1993(5) SC 533. The decision was in the context of the 42nd Amendment
of the Constitution that allowed to the government servant a right to
receive the report of the Enquiry Officer and represent against the
findings recorded. The Constitution Bench was examining the right to
be served with report at the second stage of the disciplinary enquiry
when a government servant shall serve with a notice to show cause
against a proposed penalty. While holding that a delinquent was entitled
to a copy of the report, even when the statutory rules did not permit, the
Court explained that the law laid down in Union of India Versus Mohd.
Civil Writ Petition No.10966 of 1989 (O&M) – 11 –
Ramzan Khan-1991(1) SLR 159 (SC) must be understood in such a way
of whether it was specifically provided under rules or not, a copy of the
report must always be furnished even if he does not ask for it. The
Hon’ble Supreme Court, however, laid down one more qualification for
this principle to apply viz. of a person who complained of violation of
natural justice for non-furnishing of report must prove prejudice and the
issue of whether a prejudice has been caused or not has to be examined
in the facts and circumstances of each case. The Hon’ble Supreme Court
held that the question as to whether the employee was entitled to back
wages and other benefits from the date of dismissal to the date of
reinstatement should invariably be left to be decided by the authority
according to law. In this case, the non-furnishing of copy of the Enquiry
Officer’s report had surely prejudiced Mr. Behal in his inability to point
out as to how the finding had been completely vitiated by the lack of
evidence appropriate to an adjudication whether there had been a
misappropriation or a fraudulent removal of Mr. Behal to 200 bags of
paddy. I am not examining certain other decisions which had been cited
by the learned counsel to show as to how the non-furnishing of the
Enquiry Officer’s report would amount to violation of natural justice.
13. Even without reference to the fact that the Enquiry Officer’s
report had not been given, I have already pointed out that the report of
the Enquiry Officer cannot be sustained by the mere fact of a discrepancy
in entry between two registers. The discrepancy was required to be
corroborated by actual verification which was not done in this case. The
learned counsel for the petitioners referred to the decision in Natinder
Civil Writ Petition No.10966 of 1989 (O&M) -12 –
Mohan Arya Versus United India Insurance Company Limited and
others-AIR 2006 Supreme Court 1748(1) that held that even in
domestic enquiry suspicion or presumption cannot take the place of
proof and this Court is entitled to interfere with the findings of fact of
any Tribunal or authority in certain circumstances. Detailing the
circumstances in para 26, the Hon’ble Supreme Court has held:-
“In our opinion the learned single Judge and consequently
the Division bench of the High Court did not pose unto
themselves the correct question. The matter can be viewed
from two angles. Despite limited jurisdiction a civil court,
it was entitled to interfere in a case where the report of the
Enquiry Officer is based on no evidence. In a suit filed by a
delinquent employee in a civil court as also a writ court, in
the event the findings arrived at in the departmental
proceedings are questioned before it should keep in mind
the follow:
(1) the Enquiry Officer is not permitted to collect any
materia from outside sources during the conduct of the
enquiry. [See State of Assam and another Versus
Mahendra Kumar Das and others (1970) 1 SCC 709: AIR
1970 SC 1255
(2) In a domestic enquiry fairness in the procedure is a
part of the principles of natural justice [See Khem Chand v.
Union of India and others AIR 1958 SC 300 and State of
Uttar Pradesh v. Om Prakash Gupta (1969) 3 SCC 775.
Civil Writ Petition No.10966 of 1989 (O&M) - 13 -
(3) Exercise of discretionary power involve two elements:
(i) Objective and (ii) subjective and existence of the exercise
of an objective element is a condition precedent for exercise
of the subjective element. [See K.L. Tripathi Versus State of
Bank of India and others: (1984) 1 SCC 43: AIR 1984 SC
273
(4) It is not possible to lay down any rigid rules of the
principles of natural justice which depends on the facts and
circumstances of each case but the concept of fair play in
action is the basis. [See Sawai Singh Versus State of
Rajasthan AIR 1986 SC 995
(5) The Enquiry Officer is not permitted to travel beyond
the charges and any punishment imposed on the basis of a
finding which was not the subject-matter of the charges is
wholly illegal. [See Director (Inspection and Quality
Control) Export Inspect Council of India and others
Versus Kalyan Kumar Mitra and others 1987 (2) CLJ
3441
(6) Suspicion or presumption cannot take the place of
proof even in a domestic enquiry. The writ court is entitled
to interfere with the findings of the fact of any tribunal or
authority in certain circumstances. [See Central Bank of
India Limited Versus Prakash Chand Jain AIR 1969 SC
983, Kuldeep Singh Versus Commissioner of Police and
others (1999) 2 SCC 10.
Civil Writ Petition No.10966 of 1989 (O&M) – 14 –
A Division Bench of this Court has also held in P.R.T.C. Versus Dhani
Ram 2001 (1) PLR 585 that a punishment order based on no evidence
and passed on violation of principles of natural justice is liable to be
interfered with by the High Court in its writ jurisdiction. This principle
finds affirmation by a decision of the Hon’ble Supreme Court in
Yoginath D. Bagde Versus State of Maharashtra-1999(7) SCC 739 that
held in paragraph 51 as follows:-
“……The law is well-settled that if the findings are perverse
and are not supported by evidence on record or the findings
recorded at the domestic trial are such to which no
reasonable person would have reached, it would be open to
the High Court as also to this Court to interfere in the
matter…………. It was observed that the power of judicial
review available to a High Court as also to this Court under
the Constitution takes in its stride the domestic enquiry as
well and the Courts can interfere with the conclusions
reached therein if there was no evidence to support the
findings or the findings recorded were such as could not
have been reached by an ordinary prudent man or the
findings were perverse.”
14. In the above circumstances, I have no doubt in my mind that
the finding entered by the disciplinary authority and the appellate
authority that the charges had been established against Mr. Behal was
clearly wrong. The punishment of removal from service is liable to be
interfered with. The impugned orders are quashed and the petitioner in
Civil Writ Petition No.10966 of 1989 (O&M) -15 –
CWP No.11623 of 1989 is entitled to be reinstated with continuity of
service. He would also be entitled to 50% of back wages and not the full
wages, having regard to the fact that he had not worked for the whole
period. If he has already reached the age of superannuation, he shall be
entitled to 50% back wages, as well as the terminal benefits and they
shall be calculated and the amount released to him within 12 weeks from
the date of the order.
15. As regards the findings recorded against Mr. Sapra, it was
held that he was guilty only to the charge laid in article 2, namely, that he
had not verified the entries on 24.01.1984 in stock wise and shed wise
registers. There had been a discrepancy in registers, but this finding will
have to be re-examined in the context of a changed decision that has
come through in this writ petition that there was no proof that there was
loss of 200 bags of paddy. However, he could not have been visited with
punishment which was rendered in the context of a finding recorded in
the case against Mr. Behal that there had been a loss/misappropriation.
The punishment of Mr. Sapra would be required to be re-examined in the
context of a finding that there had been no loss but a punishment
corresponding to the lapse on his part was only that of not properly
verifying the discrepancy in entries between the stock wise and shed
wise registers. The impugned order issuing the punishment is set aside
and remitted to the disciplinary authority for re-examination on the issue
of punishment only in the context of finding rendered above.
16. CWP No.11623 of 1989 filed by Mr. Behal is allowed and
in CWP No.10966 of 1989, the punishment meted out to Mr.Sapra under
Civil Writ Petition No.10966 of 1989 (O&M) -16 –
the orders are set aside and remitted to the disciplinary authority for
consideration regarding punishment in accordance with law. CWP
No.10966 of 1989 is disposed of.
(K.KANNAN)
JUDGE
27 .04.2011
sanjeev