Orissa High Court
Simanchala Das vs Managing Director Orissa Agro ... on 7 April, 2015
Author: B.R.Sarangi
Bench: B.R.Sarangi
ORISSA HIGH COURT: CUTTACK
W.P.(C) No. 116 of 2003
In the matter of an application under Articles 226 & 227 of the
Constitution of India.
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Simanchala Das ......... Petitioner
-versus-
Managing Director ......... Opp. Parties
Orissa Agro Industries Corporation
Limited, Bhubaneswar and another
For Petitioner : Mr. B.K. Sahoo, K.C.Sahoo,
R.K. Sahoo, P.K. Bhuyan
For Opp.Parties : Mr. N.K. Mishra, (Sr.Adv.)
S. Mishra, S.K. Mishra,
D.N. Mishra,S.N.Dwivedy,
D.K.Pani, A. Mishra.
PRESENT:
THE HONOURABLE DR. JUSTICE B.R.SARANGI
Date of hearing: 25.03.2015 | Date of judgment: 07.04.2015
Dr. B.R.Sarangi, J.The petitioner, who was working as a Store Keeper and subsequently working as Sr. Accounts Assistant in the office of the Factory Manager, Cattle and Poultry Feed Plant of Orissa Agro Industries Corporation Limited, Bhubaneswar has filed this application challenging the initiation of disciplinary proceeding against him on the 2 ground of violation of principles of natural justice and non-application of mind and further seeks to quash the order dated 22.06.199 passed by the disciplinary authority vide Annexure-14 for recovery of an amount of Rs.56747/- and consequential confirmation made in appeal by the appellate authority vide Annexure-16 dated 27.09.2001.
2. The short fact of the case in hand is that the petitioner while working as a Store Keeper and subsequently working as Sr. Accounts Assistant in the office of the Factory Manager, Cattle and Poultry Feed Plant of Orissa Agro Industries Corporation Limited, Bhubaneswar was placed under suspension on 2.9.1985 for a long period and when no charge was framed, the petitioner represented before the authority on 25.9.1986 to release him from suspension, but no order was passed. Thereafter charges were framed against him on 24.9.1987 vide Annexure-3 and the petitioner was called upon to show cause for which the petitioner asked for documents but the same was not supplied to him. On 9.11.1987, inquiry officer was appointed and the petitioner was permitted to see the records. Since all the records were not available, the petitioner represented for production of other records but the same not been sufficient, he filed an application on 5.12.1987 for production of other records. On 2.11.1987 and 15.12.1987, the Factory Manager informed the petitioner that the records are not available in their office. Due to non-availability of records and non-supply of documents, the petitioner made a representation on 13.1.1988 expressing his 3 helplessness in preparing show cause and requested to defer the inquiry which had been fixed. In absence of the documents called for, the petitioner submitted preliminary explanation without those documents on 9.2.1988. Though the petitioner submitted application on 17.2.1988 before the inquiry officer for permission to take assistance of Advocate, no order was passed on that score. Finding no way out, on 5.3.1988 the petitioner submitted supplementary preliminary explanation. Pending finalization of the inquiry, the petitioner was reinstated in service on 12.10.1988. Thereafter, the inquiry officer submitted his inquiry report before the opposite party No.1 on 16.10.1990 where the inquiry officer suggested recovery of Rs.56747/- which the disciplinary authority accepted vide order dated 22.6.1999 and directed for recovery of the said amount from the petitioner. Against the said order, the petitioner preferred an appeal on 2.7.1999, but the appellate authority without any application of mind by a cryptic order rejected the appeal on 27.9.2001. In the meantime, on attaining the age of superannuation, the petitioner has already superannuated from service on 31.5.2002. Hence this application.
3. Mr. P.K. Bhuyan, learned counsel for the petitioner strenuously urged that the entire proceeding is vitiated for non- compliance of principles of natural justice inasmuch as the direction given for recovery of the amount of Rs.56747/- on the basis of the calculation given under Annexure-I to the office order vide Annexure- 4 14 dated 22.6.1999 from the monthly salary of the petitioner @Rs.1000/- per month along with interest @18% per annum w.e.f. 24.9.1987 is arbitrary and unreasonable and outcome of non- application of mind and confirmation made by the appellate authority by a cryptic order vide Annexure-16 also cannot be sustained in the eye of law. Therefore, he seeks for interference of this Court in the present application.
4. Mr. A. Mishra on behalf of Mr. N.K. Mishra, learned Senior Counsel for the Corporation strenuously urged justifying the action taken by the authority and direction given for recovery of the amount from the petitioner and stated that the order impugned has been passed in consonance with the provisions of law. Therefore, this Court should not interfere with the same.
5. Considering the contention raised by learned counsel for the parties and after going through the records, it appears that the petitioner while continuing as Sr. Accounts Asst. was charge-sheeted on 24.09.1987 for committing financial irregularities on the ground that while he was working as Store Keeper attached to the Office of the Factory Manager Cattle and Poultry Feed Plant of Orissa Agro Industries Corporation Limited, Bhubaneswar has misappropriated the corporation money. Consequentially he was placed under suspension and after framing of charge, he was called upon to show cause. The petitioner sought for supply of documents and the same was not 5 provided to him and he was only directed to see the records. The same being not sufficient, the petitioner asked for further documents but that opportunity was not given to him but ultimately the petitioner filed his preliminary explanation to the notice of show cause. The inquiry officer was appointed and caused inquiry on the basis of the preliminary explanation submitted by the petitioner without the documents. The petitioner also submitted an application to take assistance of an advocate in the process of inquiry, but no order was passed on that score. However, pending finalization of inquiry, he was reinstated in service on 12.10.1988. Thereafter the inquiry officer submitted his inquiry report on 16.10.1990 suggesting recovery of an amount of Rs.56747/- from the monthly salary of the petitioner. The disciplinary authority passed a final order on 22.6.1999 vide Annexure-14 without applying his mind to the inquiry report directing for recovery of the said amount of Rs.56747/- as per the detailed calculation given in Annexure-I from the monthly salary of the petitioner @Rs.1000/- per month along with interest @18% per annum w.e.f. 24.9.1987. In appeal, the same has been confirmed by the appellate authority. It appears from the inquiry report which has been enclosed to the order of the disciplinary authority that the Enquiry Officer has come to a conclusion that the charges against serial nos. D, E, F. G. H, I, J, K, L, M, N, O have been established against the petitioner. Therefore, he suggested for recovery of the said amount. But on scrutiny of the inquiry report and findings on the 6 charges, it appears that the calculation sheet in Annexure-I is contrary to each other. Annexure-I reads as under:-
"Calculation sheet showing amounts to be recovered from Sri Simanchal Das, Sr. Accounts Assistant.
Sl.No Particulars of Findings of Amounts to be
of charges Enquiring recovered
char Officer
ges
1 2 3 4
d. Misappropriation Not Rs.802.00
of cash of established.
Rs.802/- Since Sri Das
has made
credit sale he
must be held
responsible for
Rs.802
e. Misappropriation Established for Rs.1,136.75
of stock of 10 Rs.1136.75
kg. of Robimin
AB2 D2 Vitamin
to Rs.1690/-
g. Un-authorized Not Rs.12,042.60
audit sale of established.
feed amounting Facts remains
to Rs.12,042.60 that Sri Das
and made credit
misappropriation sale, so he
thereby. must be held
responsible for
the same.
h. Non-adjustment Established for Rs.4,000.00
of imprest Rs.4000/-
advance of
Rs.4000/- taken
on 22.9.84
i. Non-adjustment Established for Rs.4,000.00
of imprest Rs.4000/-
advance of
Rs.4000/- taken
on 27.6.84
j. Non-entry of Calculated for Rs.17,287.00
stock of dry fish losses on
55 Qtls storage and
amounting to established for
Rs.19,900/- in Rs.17,287/-
7
the stock book
and
misappropriation
thereof.
k. Shortage of As per enquiry Rs.2,873.88
different feed report
stocks calculated and
amounting to established for
Rs.14,346.20 0.887 MTs of
and Feed
misappropriation amounting to
thereof Rs.2873.88
l. Misappropriation Calculated for Rs.2,605.00
of Rs.3163.20 losses on
towards 93.41 shortage and
qtls common salt established for
Rs.2605/-
m. Misappropriation Later on as per Rs.2,541.00
of stock of 2000 audit report
Nos. of gunny established for
bags amounting 295 old gunny
to Rs.7600/- bags @Rs.3.80
per bag total
comes to
Rs.2541.00
n. Misappropriation Later on as per Rs.1,698.65
of stock of 437 audit report
Nos. of new established for
gunny bags 265 Nos. of
amounting to new gunny
Rs.2801.15 bags @Rs.6.41
per bag, total
comes to
Rs.1698.65
o. Misappropriation Established for Rs.7,760.12
of T.I. advance Rs.7760.12
of Rs.8451.09 (Rs.15760.12 -
Rs.8000.00)
Total - Rs.56,747.00
6. The finding reached to charge no. D by the inquiry officer is as follows:-
"The fact do not say that Sri Das the delinquent has collected the money. In case he collected he should have issued money receipt. In this case money receipt 8 has not been issued. Hence, claiming that he misappropriated the cash is doubtful."
If the amount of Rs.802/- alleged to have been misappropriated is doubtful, the inquiry officer could not have recorded finding in Annexure-I that the same has not been established. Having held so, he should not have stated that since the petitioner made credit sale, he must be held responsible, which has been done on presumption.
7. In respect of Charge No.E, without determining the quantum of shortage in detail and in absence of any materials and basing on POM report (Ext.V) punishment has been imposed which has neither been confronted nor being proved by adducing cogent evidence. Nevertheless, the Enquiry Officer suggested for recovery of the amount of Rs.1136.75/-. The inquiry officer found as follows:
"I could not get the stock book of 4/85 to 8/85 to verify the statement of the delinquent Sri Das. However, this charge was disposed basing on the POM report (Ext.V) Item-2, page-7 of the Factory Manager, where it was written that 3.275 kgs of Vitamin were found physically excess against book balance. Hence the value of Rs.1136.75 for the actual quantity short may be realized from Sri Das. Since vitamin are in supply for 1 kg Tin packs, storage shortage is not allowed."
Therefore, the demand so raised cannot be sustained.
8. In respect of Charge No.G, the inquiry officer found as follows:-
"But from the facts available, it does not indicate that Sri Das, Ex-Store Keeper has 9 collected the amount and misappropriated the same. hence, the charge can not stand.
However, the party M/s Gopalaxmi Enterprises has to be asked to produce the money receipt if he has paid. Other wise money has to be collected from the party by making reminders or by taking legal action if necessary."
Though in Annexure-I, in respect of the charge of unauthorized credit sale of feed of Rs.12,042/- by the petitioner and misappropriation of the said amount it has been specifically mentioned that the said charge has not been established, but the enquiry officer suggested for recovery of the said amount from the petitioner.
9. With regard to Charge Nos. H, I & O, the inquiry officer came to following finding:
"In my opinion this charge that Sri Das misappropriated the corporation's money is not correct. Because Sri Das while taking advance has duly given a receipt. At any moment he is liable to give account of that. Hence, he cannot misappropriate. Further, if the office is vigilant, the situation should not have arisen. Hence, the charge misappropriation may be withdrawn."
Having come to a finding that the petitioner cannot misappropriate the amount and the charge of misappropriation may be withdrawn. But in Annexure-I, the charge of non-adjustment of impress advance of Rs.4000/- on 22.9.1984 and Rs.4000/- on 27.6.1984 taken by the petitioner has been established and the same has been directed to be realized with interest from the petitioner.
10. In Charge No.J, the inquiry officer recorded the following finding:
10
"The Marshalling Officer could not produce the raw materials stock book, vol-II (1983-84) since it was not traceable, the charges was disposed basing on the facts submitted by the delinquent Sri Das.
1. Sri Das is not responsible for the approval of the stock purchased since the factory manager is purchasing.
2. He has made necessary stock entry and MRR
3. There is error in totaling.
4. If the error is allowed to be corrected the quantity of balance should be 75.59 qtls.
5. He had stock of 16.48 qtls. Hence the shortage is 59.11 qtls. Hence the audits contention that 55 qtls are misappropriated by Sri Das is not correct.
6. Sri Das's claim that normal allowable shortage was not considered while filling this charge needs consideration Because dry fish purchased normally contains heavy moisture while converting it to fish meal. But such records are not maintained. Hence, losses in normal conditions recommended for fish meal atleast may be considered for the entire quantity purchased in the year and responsibility fixed on the actual shortage arrived."
Without establishing the charge, the Enquiry Officer calculated the same for losses on shortage and established for Rs.17,287/- for recovery.
11. In Charge No.K, the inquiry officer has come to following finding:
"However, as per my detailed findings, while analyzing charge-A, 3.544 MTs of some feed was lying in the factory. Sri Das in this case deserves benefit of doubt to reduce this claim by 3.544 MTs."11
In Annexure-I, in one hand having come to a finding that the petitioner deserves benefit of doubt to reduce the claim by 3.544 MTs, but no reasons have been assigned where from this figure has come and how the quantum has been determined and directed to include Rs.2873/- for calculation.
12. In Charge No. L, the inquiry officer has come to the following finding:-
"The common salt due to its corressiveness are normally stored at outside of the factory, which is very much prone to bad inclination of weather. This definitely result some good less. Thus these aspects should have been considered by the audit before charging misappropriation charges. However, the delinquent should be allowed the free tolerance of shortages on the item on the entire quantity of common salt during the year and responsibility accordingly be fixed."
13. It appears that the inquiry officer calculated the loss on shortage without assigning reasons. Therefore, the determination of entire shortage amount calculated by the inquiry officer in Annexure-I is contrary to finding arrived by him. But without any application of mind both the disciplinary authority as well as the appellate authority have confirmed the same and unfortunately directed for recovery of the said amount from the petitioner. Therefore, the said order cannot be sustained in the eye of law.
14. Apart from the above factual matrix, since the petitioner has sought for supply of documents for preparation of reply 12 to the show cause and subsequently denied perusal of records that itself is violative of principles of natural justice. In addition to the same, when the petitioner filed application for taking assistance of a lawyer during the inquiry proceeding, the inquiry officer could have passed order on such application and keeping the application pending for long time, proceeded with the matter which indicates that the inquiry officer has acted contrary to the provisions of law. Therefore, this Court is of the considered view that the finding arrived at by the inquiry officer without giving opportunity to the petitioner is vitiated for non-compliance of principles of natural justice.
15. Admittedly, the petitioner was placed under suspension from 2.9.1985 to 12.10.1988. Though he has been paid subsistence allowance for the said period but there is no order as to how that suspension period is treated by the authority. Neither the disciplinary authority nor the appellate authority has dealt with the same. Rather the appellate authority has passed a cryptic order simply rejecting the appeal without any finding. Therefore, the order so passed by the disciplinary authority vide Annexure-14 dated 22.6.1999 as well as the appellate authority vide Annexure-16 dated 27.9.2001 on the basis of perverse inquiry conducted by the inquiry officer cannot be sustained in the eye of law.
16. Therefore, in exercise of power under judicial review, this Court is of the considered view that the proceeding 13 initiated against the petitioner on the allegation of misappropriation of corporation money and direction given by the disciplinary authority for recovery of amount of Rs.56747/- on the basis of the inquiry report submitted by the inquiry officer under Annexure-14 dated 22.6.1999 and the confirmation thereof in appeal by a cryptic order passed by the appellate authority under Annexure-16 dated 27.9.2001 are vitiated being outcome of non-application of mind and non-compliance of principle of natural justice and cannot be sustained in the eye of law. Accordingly, the same are hereby quashed.
17. The writ petition is allowed. However, no order as to costs.
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Dr.B.R.Sarangi, J.
Orissa High Court, Cuttack The 7th April, 2015/Jagdev