Punjab-Haryana High Court
Mahinder Pal Dogra vs Punjab State Co-Operative Supply And ... on 23 May, 2007
Equivalent citations: (2007)147PLR714
JUDGMENT M.M. Kumar, J.
1. This judgment shall dispose of instant petition bearing C.W.P. No. 11662 of 2004 and other 29 connected writ petitions (for details see footnote at the end of this judgment) as common question of law and facts have been raised. For understanding the contour of controversy, the facts are being referred from C.W.P. No. 11662 of 2004.
2. Challenge in this bunch of petitions is to the charge sheet issued by the Punjab State Co-operative Supply and Marketing Federation Limited (for brevity, 'the Markfed') leveling allegation that the petitioners in connivance with other staff are responsible for the shortage of paddy, which has been allegedly embezzled. There are allegations that the petitioner by his acts of omission and commission has caused huge loss amounting to crores of rupees. For the sake of convenience, the charge sheet issued to the petitioner in C.W.P. No. 11662 of 2004, is referred and the same reads as under:
CHARGES IN BRIEF AGAINST SH. M.P. DOGRA, FO/BR INCHARGE. He is alleged to be guilty for causing loss of Rs. 1,81,41,199.77 relating to paddy crop 97-98 in connivance with S/Shri Raj Singh, F.O. and Gurcharan Singh, F.O. (Retd.), which is a serious mis-conduct on his part.
Managing Director Markfed CHARGES IN DETAIL AGAINST SHRI M.P.DOGRA, FO/BR. INCHARGE.
While working as Branch Incharge in Markfed Branch Office, Muktsar, he was the joint custodian of following rice shellers with S/Shri Raj Singh, F.O., Gurcharan Singh, F.O. (Retd.) relating to paddy crop 97-98 as per detail below:
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Sr. No. Name of the Sheller Joint custody with
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1. M/s Abhisek Industries Muktsar Raj Singh, F.O. (U/S)
2. M/s M.L. Kalra Rice & Gen. Mills, Muktsar. -Do-
3. M/s Paradise Rice Mill, Muktsar -Do-
4. M/s Anil Rice Traders, Gurcharan Singh, F.O.(Retd.)
5. M/s Krishna Jai Trading Co., Muktsar -Do-
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Upto 31.12.2001, following quantity of stocks were found short in these mills valuing Rs. 1,81,41,199.77. The detail of sheller-wise shortage is as under:
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Sr. Name of rice mill Paddy Rice Loss @ 653.80 per
No. Bags Wt. Qtl. Rice
PR-
106
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1. Abhishek Inds. 397 258.05 1,68,713.09
2. Anil Rice Traders 510 331.50 2,16,634.70
3. M.L. Kalra & Rice 3964 2576.60 16,84,581.08 Gen. Mill
4. Paradise Rice Mill 36751 23888.15 156,18,072.47
5. Krishna Ji Trading Co. 919 597.35 3,90,547.43
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42,541 27,651.65 1,80,78,648.77
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IR-108
1. Anil Rice Traders 156 101.40 62,551 @ 616.87 He is, thus, alleged to be guilty for causing loss of Rs. 1,81,41,199.77 relating to paddy crop 97-98 in connivance with S/Shri Raj Singh, F.O. and Gurcharan Singh, F.O. (Retd.), which is a serious mis-conduct on his part.
Sd/-
Managing Director Markfed
3. According to the assertions made by the petitioner, when paddy is entrusted by the Markfed to the miller for the purposes of milling rice then its physical and actual control always remain with the miller. In that regard reference has been made to the agreement entered into by the Markfed with the miller as also arbitration clause in the agreement, which is attached as Annexure P-l with C.W.P. No. 581of 2005. It has also been pointed out that the letter of the Chief Secretary to Government of Punjab, dated 11/16.12.2002 (P-7), also clarifies that joint custody with the miller by Markfed is only notional as possession remains with the miller only who store the paddy in their premises. Therefore, involving officers of the procurement institutions by the investigating agencies while investigating cases against the miller was stated to be misconceived and fallacious. Taking notice of the aforementioned letter of the worthy Chief Secretary, this Court has issued notice of motion on 5.8.2004, staying further proceedings. The order of the Division Bench reads as under:
Mr. T.P. Singh refers to the directions issued by the then Chief Secretary in the letter dated 11/16.12.2002 (Annexure P-7), regarding registration of cases pertaining to misappropriation of paddy stock. The aforesaid letter is in continuation of an earlier letter dated 21.8.2002 in which the Chief Secretary had requested various authorities to book unscrupulous rice millers who had misappropriated huge quantities of paddy stored with them. When charge sheets had been issued against a large number of employees, the Chief Secretary issued letter dated 11/16 December, 2004 mentioning therein that involving officers while investigating cases against the millers seems to be misconceived and fallacious, because for all intents and purposes, the paddy is under the control of the millers as it is stored in their premises. He also noticed a judgment rendered by C.J.M., Barnala in which it has been held that where the miller had removed the stock of paddy with intent of misappropriation without the consent of procuring agency, only the miller is liable for criminal action. Relying upon the aforesaid, Mr. T.P. Singh submits that the issuance of charge sheet (Annexure P-5) is an abuse of process of law.
Notice of motion for November 5, 2004.
Further proceedings pursuant to Annexure P-5 are stayed.
4. During the course of proceedings a number of awards passed by the arbitrators in arbitration proceedings between the Markfed and millers have also been placed on record, which have led to an argument that once the awards have been passed against the millers then recovery from the petitioners, who were the members of the staff, could not be effected and, therefore, the charge sheets were liable to be quashed.
5. The stand of the respondent Markfed is that enquiry officers have been appointed and in cases where awards have been passed against the millers then the punishing authority would pass appropriate orders granting relief to the deserving employee. In that regard our attention has been drawn to the order dated 24.3.2005, passed against the petitioner Shri M.P. Dogra in respect of previous years (C.W.P. No. 11662 of 2004) (R-1)/1. In the concluding part of the order, the Managing Director, Markfed, who is the competent authority has recorded that in case the loss is not recovered from the millers through arbitration/legal proceedings then the same was to be recovered from the officers in equal proportion along with interest.
6. After hearing learned Counsel for the parties at a considerable length, we have reached the conclusion that there is no merit in these petitions and they are liable to be dismissed. Exercising the power to judicial review by examining the correctness of charges at the threshold of issuing the charge sheet has not been encouraged by the judicial precedents. It is not possible for the courts to substitute the whole mechanism of framing of charge sheet, adducing evidence, submission of report by the enquiry officer and subsequent proceedings leading to passing of order by the punishing authority and then by the appellate authority. Even in cases where the charge sheet is totally vague or did not disclose any misconduct, Hon'ble the Supreme Court has disapproved quashing of the charge sheet. In that regard reliance may be placed on the judgment of Hon'ble the Supreme Court in the case of Deputy Inspector General of Police v. K. Swaminathanj . It would be apposite to read para 4 of the judgment, which is as under:
4. It is settled law by a catena of decisions of this Court that if the charge memo is totally vague and does not disclose any misconduct for which the charges have been framed, the tribunal or the court would not be justified at that stage to go into whether the charges are true and could be gone into, for it would be a matter on production of the evidence for consideration at the enquiry by the enquiry officer. At the stage of framing of the charge, the statement of facts and the charge-sheet supplied are required to be looked into by the court or the tribunal as to the nature of the charges, i.e., whether the statement of facts and material in support thereof supplied to the delinquent officer would disclose the alleged misconduct. The Tribunal, therefore, was totally unjustified in going into the charges at that stage. It is not the case that the charge memo and the statement of facts do not disclose any misconduct alleged against the delinquent officer. Therefore, the Tribunal was totally wrong in quashing the charge memo. In similar circumstances, in respect of other persons involved in the same transactions, this Court in appeals arising out of S.L.Ps. (C) Nos. 19453-63 of 1995 had on 9.2.1996 allowed the appeals, set aside the order passed by the Tribunal and remitted the matter holding that:
This is not the stage at which the truth or otherwise of the charges ought to be looked into. This is the uniform view taken by this Court in such matters.
7. Similar view was taken in the case of State of U.P. v. B.C. Thakur 1994 S.C.C. (L&S) 835. In para 3 of the judgment, their Lordships' disapproved the action of the Administrative Tribunal in quashing charge sheet by observing as under:
3. Having heard learned Counsel for the parties, we are satisfied that in the facts and circumstances of the case, the impugned order of the Tribunal quashing the order of respondent's suspension does not call for any interference, even though the other part of the Tribunal's order quashing the charge-sheet issued to the respondent cannot be sustained. The quashing of the charge-sheet by the Tribunal is not on the ground of want of authority to issue the charge-sheet or any other inherent defect therein. This being so, the question of going into the merits of the charges, which are yet to be investigated in the departmental proceedings, did not arise for consideration or adjudication by the Tribunal at this stage. This being so, the Tribunal's order quashing the charge-sheet as well, on reaching the conclusion that the suspension order had to be set aside, is unwarranted....
8. When the facts of the present case are examined in the light of the principle laid down by Hon'ble the Supreme Court in the aforementioned judgment it becomes evident that the question of opining on the correctness of charge sheet or its vagueness, cannot be gone into at the threshold because evidence may substantiate those charges. Ordinarily, no judicial review of charges is possible because it would involve deciding the case on merit, which is well nigh impossible because the courts lack any mechanism which could be substituted for the departmental inquiry. Therefore, we express our inability to accept the prayer made by the petitioners for quashing the charge sheets.
9. For the reasons recorded above, these petitions fail and are dismissed. The respondents shall proceed with the charge sheets in accordance with law.