Gauhati High Court
Smti Ghanakanti Handique vs Assam State Electricity Board And Ors on 13 August, 2015
Author: Hrishikesh Roy
Bench: Hrishikesh Roy
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
WP(C) No.594/2008
Smti. Ghanakanti Handique,
Wife of Sri Ajit Phukan,
Resident of Chandan Nagar,
Jorhat, P.O. Jorhat,
District - Jorhat, Assam. ... Petitioner.
VERSUS
1. Assam State Electricity Board
Represented by its Chairman,
Bijulee Bhawan, Paltanbazar, Guwahati.
2. The Chairman,
Assam State Electricity Board,
Bijulee Bhawan, Paltanbazar, Guwahati.
3 The Manager Personnel,
Assam State Electricity Board Paltanbazar Ghy.
4 The Chief Accounts Officer,
Assam State Electricity Board,
Bijulee; Bhawan, Paltan Bazar, Ghy.
5 The Executive Engineer,
Jorhat Electrical Divn., A S E B, Jorhat. ...Respondents.
BEFORE
THE HON'BLE MR JUSTICE HRISHIKESH ROY
For the petitioner : Mr. T.J. Mahanta, ... Sr. Advocate.
Ms. P. Bhattacharya. ... Advocate.
For the respondents : Mr. B.D. Das. ... Sr. Advocate.
Mr. D. Nath. ... Advocate.
Date of hearing and Judgment : 13.8.2015.
JUDGMENT AND ORDER (ORAL)
Heard Mr. T.J. Mahanta, the learned Senior Counsel appearing for the petitioner. The respondent ASEB and their officers are represented by the learned Senior Counsel Mr. B.D. Das.
WP(C) No.594/2008 Page 1 of 9 22. The matter pertains to a disciplinary proceeding drawn up under Regulation 10(1) of the ASEB (General Service) Regulations (for Officers), 1960 (hereinafter referred to as "the ASEB Regulations") through the Charge Memo dated 30.4.2005 (Annexure-3). Here it was alleged that while the petitioner was posted as the Dy. Accounts Officer in the Baligaon Electrical Sub Division from December 1993 to 25.9.2004, she (i) neglected duty; (ii) caused loss to Board's property/revenue worth Rs.5,74,926/-; and (iii) committed breach of the ASEB's Officers' (Conduct) Regulations 1982. A statement of allegation was enclosed to the Charge Memo and the delinquent was asked to respond to the charges.
3. The charges related to, inter alia, (i) Irregular maintenance of 89 numbers of consumers ledgers without specifying the service connection of the concerned consumers, resulting in substantial loss of revenue; (ii) Preparation of Bills without reference to the actual consumption and Board's tariff; (iii) Dropping of arrear amounts of 271 consumers; (iv) Failure to supervise the works of the Billing Clerks by the Deputy Accounts Officer during her entire tenure of 11 years, because of which bills were prepared haphazardly; (v) Presenting incorrect bills by recording average consumption for large numbers of consumers; (vi) Bills being prepared without reading the electricity meters for about 95% of the energy bills (vii) Non collection of electricity charges from the Board's employee etc. According to the disciplinary authority the delinquent herself or in collusion with the other employees of the ASEB had caused revenue loss of at least Rs.5,74,926/- and thereby she failed to maintain absolute integrity, devotion duty and also conducted herself in a manner unbecoming of an officer of the Board and thus she violated Sub-Clause (i) (ii) (iii) of Regulation 3(1) of the ASEB Regulations.
4. In her response of 16.5.2005 (Annexure-4), the delinquent denied that irregularities had occurred on account of her negligence. She referred to the role of the Billing Clerks, Jr. Engineers and other staff of the ASEB for the lapses and claimed that she has been serving the ASEB honestly and diligently and had not intentionally caused any revenue loss. The heavy workload in the Baligaon Sub-Division and lack of assisting staff was her excuse for some inadvertent WP(C) No.594/2008 Page 2 of 9 3 mistake but she stoutly denied the charge of misappropriation. According to the delinquent, she has maintained integrity and devotion of duty during her 25 years of service and accordingly prayer was made for exoneration of the delinquent.
5. Dissatisfied with the reply received from the delinquent, Mr. R.N. Bora was appointed as the Enquiry Officer. In the domestic enquiry a written statement was submitted by the delinquent as her response to the charges but she did not adduce any evidence in defence. But 3 (three) prosecution witnesses were presented and some documentary evidences were introduced to prove the charges by the ASEB.
6. After due deliberation, it was held by the Enquiry Officer in his report dated 28.10.2005 that negligence of duty under Charge No.1 is established but there is nothing to show that the delinquent manipulated the records in a criminal conspiracy. On Charge No.2 the Enquiry Officer observed that the Dy. Accounts Officer is not exclusively responsible for the loss of revenue but she has to share the responsibility with the Billing Clerks and others. Thus the 2nd Charge was also found to be substantially proved. The charge relating to want of integrity was not found proved but the related charge of failure to maintain devotion to duty and acting in a manner unbecoming of an officer of ASEB were held to have been substantially established.
7. The enquiry findings were considered by the disciplinary authority and he agreed with the conclusions but noticing that the delinquent is on the verge of retirement, instead of the proposed penalty of service termination, the lesser penalty of compulsory retirement was ordered on 27.5.2006 (Annexure-7).
8. Being aggrieved with the disciplinary action, the delinquent approached the High Court through the WP(C) No.4048/2006 where the Court noted that the copy of the enquiry report was not furnished to the petitioner. On this basis the High Court set aside the order of punishment through its judgment dated 17.5.2007 (Annexure-10). However the disciplinary authority was WP(C) No.594/2008 Page 3 of 9 4 permitted to decide afresh, after considering the reply of the petitioner against the enquiry officer's report. In pursuant to the Court's order, the petitioner was reinstated on 22.6.2007 but was immediately placed under suspension. As the enquiry report was furnished in the meantime, the delinquent was asked to file her reply to the 2nd show-cause-notice.
9. In her response of 3.7.2007 (Annexure-12) the delinquent projected the heavy workload and shortage of manpower in the Baligaon Sub- Division for the irregularities and she claimed that she is not solely responsible for the loss caused to the ASEB. The response of the delinquent was taken into account along with the inquiry report and the disciplinary authority expressed the view that the delinquent was responsible in committing gross irregularities during her long tenure as the Dy. Accounts Officer and that she neglected her work and failed to maintain devotion to her duties and thereby she caused huge financial loss to the ASEB. During the personal hearing afforded to her on 26.7.2007, the delinquent was unable to show any mitigating circumstances but nevertheless the disciplinary authority opted for the lesser penalty of compulsory retirement, under Clause 10(2)(vi) of the ASEB Regulation by the order dated 8.8.2007 (Annexure-13), as termination will result in loss of all benefits for 25 years' service.
10. The delinquent then approached the Appellate Authority through her representation of 13.9.2007 (Annexure-14) where she again highlighted the issue of collective responsibility and shortage of staff. Victimization was also pleaded by the delinquent by projecting that the 4 SDO's and Jr. Engineers against whom disciplinary proceeding was drawn up, were allowed to go scot- free. However the Appellate Authority under his impugned order dated 13.12.2007 (Annexure-15) found no reason to disturb the penalty inflicted on the petitioner and accordingly the delinquent's appeal was rejected on 13.12.2007 (Annexure-15) WP(C) No.594/2008 Page 4 of 9 5 11.1 Assailing the legality of the enquiry proceeding, Mr. T.J. Mahanta, the learned Senior Counsel submits that the Special Audit Report was made the basis of the disciplinary proceeding but the copy of the Audit Report was never furnished to the delinquent and on this basis it is argued that the proceeding is vitiated.
11.2 Referring to the manpower shortage and heavy workload in the Baligaon Sub-Division, the petitioner submits that this mitigating factors should have been taken into account by the disciplinary authority but the difficulties faced by the Dy. Accounts Officer was not at all considered.
11.3 Mr. Mahanta refers to averments in Paragraph 28 of the writ petition to project that two S.D.Os Pradip Sharma and Lalit Sharma and two Jr. Engineer Surjya Bhuiya and Anibanda Goswami were also charge sheeted for misappropriation and negligence of duty but no punishment was ever inflicted upon those 4 officers, whereas the petitioner was singled out for severe punishment.
11.4 As the charge of misappropriation or personal gain was not established against the delinquent, the Senior Counsel submits that the punishment is disproportionate in a case where collective responsibility is attributed for the loss of revenue.
12.1 On the other hand, Mr. B.D. Das, the learned Senior Counsel for the ASEB submits that the delinquent was posted for 11 years in the Baligaon Sub-Division and during her entire tenure, she failed to supervise the subordinate staff in the Accounts Section and this was the cause for huge revenue loss for the Board. As the negligence of duty was in huge scale and related to 89 consumers ledgers, wrong power bills for about 95% of the consumers and failure to raise arrear bills in respect of 271 consumers, the negligence is projected to have wide ramification and accordingly it is contended that this shouldn't be treated as a simple case of negligence of duty where the delinquent can expect lenient treatment.
WP(C) No.594/2008 Page 5 of 9 612.2 The respondents contend that the copy of the Special Audit Report was made available for inspection of the delinquent and it was mentioned as the Document No.1 in the Charge Memo dated 13.4.2005 and on this basis Mr. Das submits that an argument of prejudice can't be advanced by the delinquent, if she had failed to inspect the document which was made available.
12.3 Mr. B.D. Das submits that the delinquent was treated leniently by not terminating her service and the argument of discrimination and victimization is repudiated by the learned lawyer by projecting that the two S.D.Os Pradip Sarma and Lalit Sarma and 4 Billing Clerks in the Sub-Division were also penalised for their lapses.
12.4 Referring to the responsibilities of the Dy. Accounts Officer (earlier JDA) in the ASEB's circular dated 25.10.1971, Mr. Das argues that the delinquent is directly responsible for correct assessment of revenue, billing and collection and it is the delinquent's responsibility to supervise the works of the billing clerks to ensure that the bills are prepared accurately on the basis of meter readings. He further submits that the post of Dy. Accounts Officer was specially created to plug the loopholes in collection of revenue, ensure proper maintenance records in the Sub-Divisional Offices of the ASEB and in this context, the delinquent was total failure.
13. It can be gathered from the inquiry report of 28.10.2005 that the petitioner's plea of shortage of staff was taken into account. But considering the magnitude of the irregularities which appeared to be all pervading in the office, the supervisory failure of the Dy. Accounts Officer was held to be inexcusable. In fact the following narration will indicate the thought process of the Enquiry Officer -
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She has been pleading in her written statement in reply to the charges as also all throughout the enquiry that there was shortage of staff in the office and she had to work very hard. She admitted because of heavy burden of work, there might be some mistakes or errors which were unintentional.
Even accepting her plea that she was overburdened with work, it is difficult to understand how she was unable to detect and check irregularities in the office on such a WP(C) No.594/2008 Page 6 of 9 7 large scale. From the evidence given by the witnesses and the papers produced in the enquiry, it is clear that in this office, there were irregularities in galore. It is not the case of a few irregularities here and there. In fact, such irregularities appear to be all- pervading in the office. Ledgers were kept incomplete, service connection records were not available, and such connections were given without taking the estimated amount and without installing meters, huge amounts of arrears were dropped, consumers were billed on average basis @54/72 units without taking meter readings, in many cases there were no meters, electricity dues were not realized from the Board's employees and later when the Board directed the office to prepare bills on the basis of meter reading, the office prepared bills on average basis at 54/72 units per month, and so on. What is surprising is that such irregularities continued for several years and Smti Handiqui, who was the Dy. A.O. of the office since Dec/93 for nearly 11 years, failed to check the irregularities. It would be obvious that even a few checks here and there, would have been enough to detect and check such large scale irregularities. Smti Handiqui might have done some checking as stated by her, but such checking was not at all effective, as the irregularities continued to flourish all around.
Clearly, Smti Handiqui neglected her duty on account of which, there were irregularities in the office resulting in loss of revenue to the Board calculated at a minimum of Rs.5.74 lakh. As there may be others like the bill clerks etc. who may be liable for such loss to the Board, it may be difficult to hold the Dy. A.O. to be solely responsible for the whole of this calculated loss. However, there is little doubt that for this loss, she also has her share of responsibility and thus, the allegation/that she caused loss to the Board, has been made out to that extent.
Re: Charge No.3 - The allegation is that Smti Handiqui failed to maintain integrity, devotion to duty and she was doing things in a way which was unbecoming of an officer of the Board. Smti Handiqui, of course, denied the allegation.
As far as the question of maintaining integrity by Smti Handiqui is concerned, it has not been made out in the enquiry that she did anything dishonestly. It has not been made out that she manipulated the records in collusion with the bill clerk resorting to criminal conspiracy or that she misappropriated any amount or that she did anything for her own personal gain. But, so far as maintaining devotion to duty is concerned, it is clear that by neglecting her duties as the Dy. A.O., causing massive irregularities in the office, she failed to maintain devotion to duty. As regards the allegation of acting in a manner unbecoming of an officer, it may be stated, as earlier discussed in the report, the irregularities in the office were on a large scale. It was the bounden duty of the Dy. A.O. to do everything to check these; but there is nothing at all to show that she did anything of the kind. She was asked during the enquiry if she submitted any office note to the SDO bringing to his notice the irregularities, and if so, to produce such records. But she expressed her inability to do so. There is little doubt that her performance in the office as Dy. A.O. was unbecoming of an officer of the Board. The allegation under charge No.3 has thus been substantially made out.
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14. In so far as the plea of non-furnishing of the Audit Report, the said document was available for inspection as it was mentioned as the 1st document in the Charge Memo. In fact a very detailed reply was given by the delinquent on 16.5.2005 and it can be inferred from the said reply that she had accessed the Audit Report which was amongst the record of the Inquiry WP(C) No.594/2008 Page 7 of 9 8 Proceeding..
15. The victimization plea raised by the writ petitioner is found to be incorrect as it appears that punishment was imposed on two S.D.Os Pradip Sarma and Lalit Sarma . Similarly four Billing Clerks were also punished for their lapses. Moreover the disciplinary proceeding appears to be inconclusive against two Jr. Engineers. Therefor it doesn't appear to be a case of selective victimization of the delinquent for the large scale irregularities in the Baligaon Sub-Division and disciplinary action was taken against all those found responsible.
16. When we examine the role and responsibility of the Dy. Accounts Officer as notified in the ASEB's circular of 25.10.1971, it is apparent that billing and collection of revenue, maintenance of proper record and supervisory responsibility of the Billing Section are entirely on the shoulder of the Dy. Accounts Officer in the Sub-Division and therefore the large scale irregularities in the Baligaon Sub-Division where the delinquent was posted for about 11 years, can't be brushed aside as a case of minor aberration.
17. When a disciplinary proceeding is drawn up against an employee, the standard of proof is preponderance of probabilities and some relevant material to justify the conclusion reached by the Enquiry Officer and the writ Court is not expected to act as an appellate authority to judge the merit of the conclusion reached by the Enquiry Officer. Interference would be justified only when there is procedural error leading to manifest injustice. But in the present case, as earlier noted, the delinquent was afforded a fair opportunity to defend the charges and the conclusion of the Enquiry Officer is based on oral and documentary evidence.
18. The Inquiry Report shows that the findings are recorded with due reference to the evidence available and the mitigating factors raised by the WP(C) No.594/2008 Page 8 of 9 9 delinquent were also taken into account while finding was given on the individual charges. The delinquent actively participated in the Enquiry and she was provided access all the relevant documents and a fair opportunity was provide to her. Thus the enquiry proceeding is consistent with the principle of natural justice.
19. In so far as the plea of disproportionate penalty, I find that the disciplinary authority opted for a lenient punishment to enable the delinquent to enjoy her service benefits by ordering compulsory retirement instead of termination of service and in the context of the large scale irregularities in the Baligaon Sub-Division where the want of supervisory action of the Dy. Accounts Officer is one of the dominant cause for the institutional aberration, I hold that the punishment is proportionate and is logical in the context of the charges and its impact on the ASEB.
20. For the foregoing discussion I find this case to be devoid of merit and the same is accordingly dismissed. No Cost.
JUDGE Datta.
WP(C) No.594/2008 Page 9 of 9