JUDGMENT
S.K. Kar, J.
1. Being inflicted with minor punishment of withholding of 2 increments with cumulative effect, petitioner Sri Nazrul Islam has approached this court on 24.2.1997 to invoke power of this court under Article 226 of Constitution alleging violation of Articles 14, 311 and provisions of Assam State Warehousing Corporation (in short ASWC) (Staff) Regulation, 1980 and violations of Assam Civil Services (Discipline and Appeal) Rules, 1964 etc. (It is stated by respondents that Regulations of 1980 has since been replaced by ASWC (Staff) Regulations, 1989.)
2. The petitioner was appointed as Technical Assistant under ASWC in the year 1980. He attended training at New Delhi successfully and thereafter was transferred to and posted at Tangla, Maidamgaon and Karimganj. He was then posted at Silchar by order dated 23.10,1992 and entrusted with responsibility to open proposed Silchar Centre II of ASWC. He was facing staff shortage and by repeated letters asked for the experienced staffs but the authority refused to respond sympathetically.
3. On 21.4.1993 a rake of 13 wagons of Mutate of Potash (MOP) arrived at railway-head at Silchar and representative of Indian Potash Ltd. approached him with copy of order from Indian Potash Ltd. and requested him to receive the same which perplexed him but then, he went to receive the same and on his arrival at railway head he found Warehouse Manager of Silchar Centre-I had already taken delivery of few wagons and shifted the goods to his godown. The petitioner requested the railway authority to stop delivery of goods to warehouse Manager, Silchar Centre-I, ASWC and hand-over full wagons to him. Thus petitioner took, delivery of goods (MOP) of seven wagons (2976 bags = 148.9 MT) from railway authority – (extract from para 5 of writ petition). That Warehouse Manager, Silchar Centre-I, received 4083 bags, 204,15 MT of MOP out of the 13 wagons. That the normal procedure of sending intimation to Centre by Head Office at Guwahati was not followed in this case before arrival of the rake of MOP at Silchar, thereby causing hardship to him etc.
4. That there were inspection on 23.4.1993 to 27.4.1993 by Divisional Manager followed by Area Manager and General Manager on 4.6.1993 and petitioner being asked submitted his explanations. On 13.8.1993 the Deputy Manager (Inspection) inspected the Warehouse at Silchar, Centre-II and submitted inspection report where he found 104 bags of MOP short in stock and on receipt of report petitioner was put under suspension, vide order No. AWC-40/93/Silchar-II/47 dated 27.8.1993, modified by order dated 1.9.1993.
5. That after verification of relevant records petitioner could detect that 5 MT of MOP were delivered through over-sight to Agro-Traders, Silchar, in excess of quantity actually to be delivered. Agro Traders when consulted admitted the excess delivery and agreed to deposit the value of the same. Petitioner wrote to Managing Director (MD) to permit him to adjust the same 5 MT delivered in excess to Agro Traders and thereafter handed over charge of the Centre to the next incumbent. Later on Agro Traders made the adjustment and the fact was communicated to authority by the petitioner on 30.9.1993. The contention of such adjustment was not accepted by MD and its was directed that petitioner may adjust the same against formal, delivery order of the depositor Indian Potash Ltd.
6. That vide show cause notice, bearing No. AWC 54/80/Estt/232 dated 24.12.1993, served on him on 8.1.1995, three charges of temporary misappropriation, indiscipline and misconduct and breach of trust etc. were brought against him. In his reply to show cause notice he explained the matter and denied the charges. Vide memo No. AWC-417/93/Estt/48 dated 17.8.1994 of MD the suspension order of petitioner was vacated and he was reinstated but was punished with withholding of two increments with cumulative effects with a further order to treat the period of suspension as not on duty. That the punishment was imposed on him without he being heard and without furnishing copy of inquiry report and he was furnished the enquiry report only on his applying for it after the imposition of penalty.
7. The petitioner however, presented statutory appeal on receipt of the inquiry report to the Chairman on 30.12.1994, No action was taken on his such appeal till 27.8.1996 when MD vide Memo No. AWC-54/80/ Estt/33 dated 27.8.1996, revised the punishment and following order was passed –
“(i) the period of his suspension is treated as on duty
(ii) two (2) increments have been withhold with cumulative effect.
(iii) the pay and allowances during the period of suspension will be limited to subsistence allowance only.”
8. That as per ASWC (Staff) Regulations, 1980, vide regulation 18, the services of petitioner comes under class-II employees and appeal is to be heard by Board of Directors in this case but his appeal was disposed of by the MD by the impugned order dated 27.8.1996 partially modifying his own order dated 17.8.1994 without any legal authority for which the order was illegal, arbitrary and without jurisdiction, etc. Accordingly, the petitioner prayed for quashing orders dated 17.8.1994 and 27.8.1996 aforesaid of the MD, ASWC and for issuing directions to make payment of amounts deducted from the salaries, etc.
9. The petition was contested by all the respondents presenting their affidavit-in-opposition on 24.7.2002, denying the allegations and contending, inter alia, that during the posting of the petitioner at Tangla there was a criminal case viz., Kalaigaon P. S, Case No. 81/86 in connection with murder of Damo Ram Deka, Chowkidar of ASWC centre, Tangla, which ended in final report. That in the year 1986 there was a charge of manipulation of Stock against the petitioner and on basis of finding of inquiry officer he was punished with stoppage of one increments with cumulative effect and his salary other than subsistence allowance was forfeited, vide proceeding No. 2/86 (Annexure-B)
10. That the contention of the petitioner that he was provided with in experienced staffs cannot be treated as a ground to explain heavy shortage of Stocks under his custody. That the question of adjustment of shortage was pleaded before the inquiry officer who rejected such plea. That the shortage of 104 bags of MOP could not be reasonably explained by the petitioner during the inquiry and he was rightly held responsible. That Agro Traders never admitted any excess delivery made to them and such allegation was never substantiated by the petitioner by any documentary evidence, rather the petitioner himself neutralised the case from his own pocket to hide up his own fault. That it was found during inspection and subsequent inquiry held that the petitioner was grossly negligent in discharge of duties and falsified the accounts and records for personal gain. That during inspection by Deputy Manager, Sri D. Lahkar, he found 1041 bags of MOP were shown as cut and torn in the warehouse receipt but on physical verification only 345 such bags were found as cut and torn, thereby 696 bags use wrongly shown as cut and torn. That charge could not be satisfactorily explained by the petitioner and he was given all opportunity to take part in enquiry and he cross-examined all the witnesses and the inquiry was held as per the Regulations.
11. That the appeal presented by petitioner was barred by limitation for not explaining delay from 6.12.1994 to 30.12.1994. That respondent No. 2 did not decide the appeal but passed order on representation of the petitioner dated 17.1.1996 and modified the order dated 17.8.1994. That petitioner has failed to point out any illegalities in order dated 17.8.1994. That in his show cause reply (Annexure-17) petitioner although admitted the shortage of 104 bags of MOP due to oversight failed explain other two charges levelled against him. That the petitioner was rightly punished on an impartial enquiry for his misconduct, negligence to duty and misappropriation of stock and there is no merit in the petition etc.
12. I have heard learned counsel appearing on both sides. Perused the annexures 1 to 23 enclosed with affidavit and Annexures A, B and C annexed with the counter-affidavit filed.
13. The petitioner in his prayer portion of the writ petition has only prayed for quashing the order dated 17.8.1994 (Annexure 18) and order dated 27.8.1996 (Annexure 23).
His further prayer is that direction to be issued to the authorities to make payments of the salary deducted in pursuance to those two (2) impugned orders.
14. For clarification I reproduced the two annexures, i.e., Annexure 18 and 23, respectively as herein below :
Annexure 18
“Office of the Assam State Warehousing Corporation Pannyagar
Bhawan : Amarapati Path :
Christian Basti :Guwahati
ORDER
The order of suspension of Sri Nazrul Islam, Warehouse Manager, Grd-II, Assam State Warehousing Corporation, under memo No. AWC-40/93/ Silchar-II/447, dated 27.8.1993 is hereby vacated with immediate effect. Shri Nazrul Islam, Warehouse Manager, Grd-II reinsteated in service after awarding punishment by withholding 2 (two) increments with cumulative effect and his period of suspension will not be treated as on duty.
Sd/-Illegible
18.8.1994
Managing Director
Memo No. AWC-417/93/Estt/48, dtd. Guwahati/17.8.1994
Copy to :
1. Sri Nazrul Islam,Warehouse Manager…
2. ……
3. …..
4…..
Sd/-Illegible
Managing Director”
Annexure 23
“Office of the Assam State Warehousing Corporation Amarawati
Path : Guwahati – 5
ORDER
On perusal of the appeal petition dated 17.1.1996 of Shri Nazrul Islam, Warehouse Manager-Gr. II. Assam State Warehousing Corporation, Gogamukh Centre against the office order under Memo No. AWC 417/93/ Estt. 48 dated 17.8.1994 the earlier order have been revised as under :
(i) The period of his suspension is treated as on duty. (ii) 2 (two) increments have been withheld with cumulative effect.
(iii) The pay and allowances during the period of his suspension will be limited to the subsistence allowances only
Sd/-Illegible
Managing director
Memo No. AWC, 54/80/Estt/333 dated 27.8.1996
Copy to :
1. Nazrul Islam ……
2. All Branch Officers ……
3. …..
4. …..
Sd/-Illegible
Managing Director.”
15. It is seen that there is no mention in the writ petition about existence of the Annexures C which the respondents have contended was a representation presented on 17.1.1996 by the petitioner to the Managing Director on the strength of which the impugned order dated 27.8.1996 was passed. On perusal of Annexure 23 it is seen that it has referred to Annexure ‘C’ (the petition presented on 17.1.1996} on the strength of which the order was passed. Therefore, although Annexure 23 has mentioned that the order was passed from ‘appeal’ petition, in fact, it was upon a representation and not the appeal petition. Copy of the appeal petition is annexed as Annexure 22 which is dated 30.12.1994 and the impugned order dated 27.8.1996 has not mentioned of such appeal petition dated 30.12.1994. Therefore, on the basis of available records before this Court it will be found and held that the appeal petition dated 30.12.1994 (Annexure 22) has not been decided by the authorities yet.
16. Although it was agitated before me that the enquiry was held illegally there is no specific pleading to challenge the merit of the enquiry save and except a casual statement in para 17 of the writ petition that the petitioner was not given opportunity to take part in the enquiry. The petitioner himself has enclosed copy of he enquiry report which is annexed as Annexure 21. A careful reading of the enquiry report will show that specific evidence was adduced to substantiate the charges. The charges were as follow ;
(i) That there was the shortage of 104 bags of MOP weighing 52 quintals ;
(ii) That the total number of CUT and TORN BAGS had been recorded as 1041 but only 345 bags were found to be cut and torn and that as many as 696 sound bags had been shown strangely as cut and torn ;
(iii) That there was the shortage of 16.99 qtls of Refined Rapeseed oil (RRSO) valued at Rs. 54,619 (Rupees fifty four thousand six hundred nineteen) only :
Three (3) witnesses were examined, namely,
(i) Shri Nripendra Narayan Das…. Area Manager… PW-1.
(ii) Shri Dwijendra Lahkar.., Dy. Manager… PW-2. (iii) Shri Ramesh Bayan … Successor in office … PW-3.
17. It has been clearly stated in the enquiry report that the delinquent officer refused to adduce any defence evidence but thoroughly cross-examined the witnesses examined by the disciplinary authority. It was also noted thereupon in the enquiry report that the only defence taken by the delinquent officer was in-adequacy of the experienced staffs. The Enquiry Officer concluded by threadbare discussions of the evidence that the culpability of the delinquent officer was proved beyond all reasonable doubt.
18. It has rightly been pointed out by the learned counsel for the respondents that there is no challenge in the entire averments in the writ petition to the findings of enquiry. This submission is confirmed from the contents of the appeal petition (Annexure 22) which was presented by the petitioner on 30.12.1994. In the appeal petition he has distinctly challenged the quantum of punishment only with a prayer for condonation of delay without slightest murmur on the findings of the Enquiry Officer. I would like to re-produce the appeal petition as under :
“Before The Chairman, Annexure-22
Board of Directors,
Assam State Warehousing Corpn.
Guwahati – 5
Through Pooper Chanel Dated Gogamukh the
30th Dec.’94
IN THE MATTER OF AN APPEAL AGAINST
THE ORDER OF THE MANAGING
DIRECTOR. ASWC NO. AWC.417/93ESTT./48
DTD. 17.8.1994
AND
IN THE MATTER OF IMPOSING PENALTY
ON THE DEPARTMENTAL PROCEEDING.
PETITIONER: I
Shri Nazrul Islam,
Warehouse Manager,
Assam State Warehousing Corpn.
Gogamukh Centre.
Respected Sir,
Your humble petitioner begs to showeth as follows :-
That Sir, being aggrieved on the verdict of the learned Managing Director,
I beg to prefer this appeal before your goodself for giving appropriate relief/remedy on the following grounds.
However the E, R. is received by your petitioner as late as on 6.12.1994.
Thus the limitation of appeal period is lapsed beyond limitation. So, your petitioner is not liable for the delay in preferring the appeal, WHICH MAY KINDLY BE CONDONED.
2. That Sir, from the E. R. and findings of the Inquiry Officer it is evident that your petitioner is not liable for any losses as alleged.
3. In view of it, your petitioner thinks that the penalties imposed upon your petitioner is quite exorbitant.
Under the above facts and circumstances your petitioner humbly prays that your honour, would be kindly review the whole matter by calling for all relevant documents and after perusal exonerate the penalties so imposed by applying natural justice and for this act of your kindness your petitioner will remain ever grateful.
Your faithfully,
sd/-
(Nazrul Islam).”
19. The genuineness of Annexure ‘B’ and ‘C’ relied upon by the respondents are not in challenge from the petitioner. Annexure B will show that on an earlier occasion, vide order dated 30.4.1992, the petitioner was punished with stoppage of one increment with cumulative effect. It is already mentioned that Annexure C was presented to the Managing Director by the petitioner for considering his promotion and releasing his arrears pay and for granting all the annual increments due to him, etc.
Therefore, from the discussion aforesaid, it is clear that the appeal-petition presented by the petitioner on 30.12.94 and addressed to Chairman, Board of Director has remained, not decided till date. It is seen that department has sympathetically reviewed the quantum of punishment imposed upon the petitioner. Naturally, it may be hoped that it will be doing so again while deciding the appeal considering the entire past service record of the petitioner. However, the contention of the respondents that out of three charges, the petitioner remained silent about the second and third charges and contested unsuccessfully charge No. 1 has remained un-controverted. The defence plea of running the centre with inadequate staff cannot account for overt act/commission on the part of the petitioner. If it was a clear case of omission, the question would have been somewhat different. It has been rightly pointed out that while discussing the evidence the Enquiry Officer opined that the petitioner had scope to hire workers or at least take help from the sister concern, Centre-I, situated at Silchar. It will be interesting to note that the petitioner himself has clearly mentioned in para 5 of writ petition that it was he and the representative of Indian Potash Ltd. who jointly compelled the railway authority to stop further delivery of the MOP to Wearhouse Manager, Silchar Centre-I and petitioner himself took the responsibility of taking delivery of the remaining 7 wagons of MOP from the railway head. If he was having short of staff or inexperienced staff there would be no occasion for him to insist delivery in his favour debarring Warehouse Manager of Silchar Centre-I. In any case, there is no convincing statement to explain the shortage of MOP, whether it was 104 bags or less and that alone will establish the guilt of the delinquent officer making him liable for punishment. It cannot be disputed that quantum of punishment is at the discretion of Disciplinary authority unless it is opined as unreasonable harsh or vitiated by any act of bias or extraneous consideration. The several review orders passed by the authority will show that the authority was acting in most unbiased way. But the inaction of the authority in deciding the appeal petition is to be treated as unwarranted and against principle of natural justice. There is no logical ground to differ the decision for 7 to 8 years. It was pointed out that after regulation of 1989 came into force the appellate authority of class II service of ASWC is Board of Directors and service of the petitioner as Warehouse Manager Grade-II is listed in regulation 5 as class II service.
20. The objection of limitation taken by respondents is however, not tenable. The limitation is to be counted from date of receipt of the enquiry report by the delinquent officer which is undisputedly the date 6.12.1994. He presented the petition of appeal (it seems) by 30.12.1994. The limitation prescribed is three months.
21. The prayer of the petitioner for quashing the order dated 17.8.1994 passed by the Managing Director is superfluous. Order dated 17.8.1994 vide memo No. AWC.417/93/Estt/48 was superseded by the subsequent order dated 27.8.1996, memo No. AWC 54/80/Estt,333.
22. In the results, the petition is partially allowed. Impugned order dated 27.8.1996, Memo No. AWC.54/80/Estt/333, is hereby set aside. The Enquiry Report remains undisturbed and the matters is sent back to the Chairman of the Board of Directors of Assam State Warehousing Corporation for deciding the appeal on merit within 60 (sixty) days from date of receipt of the order and for passing appropriate orders m accordance with law.
23. No costs.