Punjab-Haryana High Court
Kuldip Kumar Sharma vs Food Corporation Of India And Ors on 13 January, 2025
Neutral Citation No:=2025:PHHC:004426
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
210
CWP-11613-2018
Date of decision: 13.01.2025
KULDIP KUMAR SHARMA ......Petitioner
VERSUS
FOOD CORPORATION OF INDIA AND OTHERS .......Respondents
CORAM : HON'BLE MR. JUSTICE VINOD S. BHARDWAJ
*****
Present: - Ms. Deepali Puri, Advocate for the petitioner.
Mr. K.K. Gupta, Advocate for the respondent-FCI.
*****
VINOD S. BHARDWAJ, J. (Oral)
Challenge in the present petition is to order dated 29.01.2015
passed by the General Manager, Food Corporation of India, imposing
penalty of dismissal from service alongwith full forfeiture of gratuity as well
as to the order dated 26/29.09.2016 passed by the Executive Director, Food
Corporation of India, partly allowing the appeal preferred by the petitioner
and modifying the penalty to that of dismissal from service alongwith 75%
forfeiture of gratuity and as also to the order of 25.01.2018 passed by the
Managing Director, Food Corporation of India dismissing the review
petition filed by the petitioner.
1 of 43
::: Downloaded on – 01-02-2025 01:47:31 :::
Neutral Citation No:=2025:PHHC:004426
CWP-11613-2018 -2-
2. Counsel for the petitioner contends that the petitioner joined the
service of respondent-Food Corporation of India as an Assistant Grade-III
(Depot) on 13.11.1978 and was promoted as Assistant Grade-I (Depot) on
31.12.2007. He was thereafter, transferred from Patran Centre, FCI District
Bathinda and was issued an office order dated 20.05.2013, by the then
Manager, to take over the charge of the wheat stocks. It is contended that in
view of the huge quantity of 448667 bags in storage, it was practically
impossible for the petitioner to count and weigh the entire stock. The charge
of the wheat stocks was taken over by the petitioner on 28.06.2013, by a
peripheral counting of bags stored in about 140 stacks and he submitted an
affidavit to the effect that since he was not present at the time of receipt of
stocks and the possession of stocks was taken over by a peripheral counting
of both open and covered stocks, he shall not be responsible for any loss
caused. The erstwhile Manager was later transferred and one Desh Raj
joined as the new Manager on 15.07.2013. She contends that the petitioner
suffered from a cardiac problem and proceeded on a medical leave from
06.01.2014 to 09.01.2014 which was duly approved by the competent
authority. The petitioner remained admitted at the Hospital for the period
from 25.01.2014 to 31.01.2014. She contends that while the petitioner was
in Hospital at Nabha on 24.01.2014, a Committee was constituted at the
level of respondent No.5 at the instance of Desh Raj, Manager which
checked the wheat stocks on the basis of 100% stock verification by
dismantling of the stocks and it reported shortage of stock. She contends that
the petitioner had taken over the possession of stock only on a peripheral
counting and without 100% physical verification and that the reported
2 of 43
::: Downloaded on – 01-02-2025 01:47:32 :::
Neutral Citation No:=2025:PHHC:004426
CWP-11613-2018 -3-
shortage was for the reason that the short stacks had been stored in the core
by the concerned staff, prior to joining of the petitioner at the Center and
that it was not possible for him to detect such shortage solely by a peripheral
counting of bags and that the wheat stocks checked by the Committee were
not received during the incumbency period of the petitioner but already
stood received much prior to his joining at the Center on 20.05.2013. She
further contends that even on a quarterly physical verification as on
31.12.2013, there was no shortage. On 06.01.2014, when the petitioner was
in Hospital, the movement of wheat stocks in a special was made by the
Manager-Desh Raj and even the Memorandum dated 30/31.01.2014 was
served upon the petitioner under Regulation 58 for imposition of major
penalty. She contends that no entry however was made regarding the
dispatch of wheat sent on 06.01.2014. Even the Manager-Desh Raj was also
served with memorandum dated 28.07.2014, on the same set of charges, and
that even though an identical defence had been taken, however, while the
petitioner has been awarded a harsh penalty of dismissal from service
alongwith a forfeiture of 75% of the gratuity, the Manager-Desh Raj has
been let off with a minor penalty of reduction in time scale by two stages for
a period of two years with cumulative effect. She contends that there has
thus been arbitrariness on the part of the respondents in imposition of major
penalty against the petitioner. Reliance is placed by her on the judgment of
the Hon’ble Supreme Court of India in the matter of “State of U.P. versus
Raj Pal Singh“, reported as 2010 (5) SCC 783 to contend that where the
employees are served with a set of charges arising out of the same incident, a
3 of 43
::: Downloaded on – 01-02-2025 01:47:32 :::
Neutral Citation No:=2025:PHHC:004426
CWP-11613-2018 -4-
separate treatment would amount to discrimination. The operative part of the
judgment reads thus:-
“This appeal is directed against the judgment of the High
Court of Allahabad interfering with an order of
punishment inflicted upon the respondent in a
disciplinary proceedings. Admittedly, the respondent was
an Assistant Warder and the allegation against him was
that he along with four other Assistant Warders beat one
Shivdan Singh, and even though the senior officers
dissuaded them, they never listened to that. These
allegations were proved in a departmental proceeding
and the disciplinary authority passed the order of
dismissal so far as the present respondent is concerned,
though in respect of some others, he passed the order of
stoppage of five increments. The respondent assailed the
legality of the order by approaching the Public Service
Tribunal. The Tribunal having refused to interfere, he
approached the High Court. The High Court came to the
conclusion that the charges and the delinquency being
same and identical, and all the employees having been
served with a set of charges out of the same incident,
there was no justifiable reason to pass different orders of
punishment, and, therefore, the order of dismissal cannot
be sustained. The High Court consequently set aside the
order of dismissal and directed stoppage of five
Increments in case of the respondent as was the order in
case of some other Assistant Warders. The High Court
further directed that the delinquent respondent would be
paid only 50% of backwages. It is this order of the High
Court which is the subject matter of challenge in this
appeal. It is contended on behalf of the appellants that
once the charges have been held to be established, it was
4 of 43
::: Downloaded on – 01-02-2025 01:47:32 :::
Neutral Citation No:=2025:PHHC:004426
CWP-11613-2018 -5-
not appropriate for the High Court to interfere with the
quantum of punishment and judged from this standpoint,
the order of the High Court cannot be sustained. In
support of the said contention, reliance is placed on the
decision of this Court in B.C. Chaturvedi v. UOI and
others, 1996(1) SCT 617 (SC): JT 1995(8) SC 65 and
Secretary to Govt., Home Deptt, and others v.
Srivaikundathan, 1999(1) SCT 715 (SC): JT 1998(8) SC
470, Though, on principle the ratio in aforesaid cases
would ordinarily apply, but in the case in hand, the High
Court appears to have considered the nature of charges
levelled against the 5 employees who stood charged on
account of the Incident that happened on the same day
and then the High Court came to the conclusion that
since the gravity of charges was the same, it was not open
for the disciplinary authority to impose different
punishments for different delinquents. The reasonings
given by the High Court cannot be faulted with since the
State is not able to indicate as to any difference in the
delinquency of these employees. It is undoubtedly open
for the disciplinary authority to deal with the delinquency
and once charges are established, to award appropriate
punishment. But when the charges are same and identical
in relation to one and the same incident, then to deal with
the delinquents differently in the award of punishment,
would be discriminatory. In this view of the matter, we
see no infirmity with the impugned order requiring our
interference under Article 136 of the Constitution Though
the High Court by the impugned judgment has directed
that the delinquent would be paid 50% of the backwages,
but having regard to the nature of charges against the
respondent, we are not inclined to allow any backwage
from the period of dismissal till the date of reinstatement.
5 of 43
::: Downloaded on – 01-02-2025 01:47:32 :::
Neutral Citation No:=2025:PHHC:004426
CWP-11613-2018 -6-
We are told that he has been reinstated on 5.11.1997. We
make it clear that respondent will not be entitled to any
backwages from the date of dismissal till 5.11.1997.
3. Reliance is also placed on the judgment in the matter of “Sadhu
Ram versus Punjab State Co-op. Supply and Marketing Federation Ltd.”
reported as 1991 (2) S.C.T. 474
5. After hearing the learned counsel for the
parties and having gone through the inquiry report and
the impugned order of dismissal passed thereon, I am of
the considered view that the impugned order dated 26th
August, 1988, Annexure P.9, is not sustainable in the eye
of law. According to the opening para of the unpugned
order, common charges against Jasminder Singh Sandhu,
Sadhu Ram (petitioner) and Balwinder Singh had been
levelled. Further, according to the report of the Inquiry
Officer, all these officers had acted in a careless and
irresponsible manner as all of them were responsible for
maintaining the stocks. There is no separate role
assigned to the petitioner (Sadhu Ram) either in the
inquiry report or in the impugned order of dismissal from
service. Rather, the learned Managing Director did not
direct his mind to the finding arrived at by the Judicial
Magistrate 1st Class, to the effect that “As far as Sadhu
Ram accused is concerned, he was not incharge of the
open godown and the wheat found short was not in his
custody. Therefore, there was no entrustment to him. He
has handed over the charge of this godown to accused
Balwinder Singh and Jasminder Singh on 12.7.83 while
the shortage was found in between 27.12.83 to 28.1.84.”
Otherwise also, when Balwinder Singh had been
reinstated by the Labour Court, the petitioner, who was a
6 of 43
::: Downloaded on – 01-02-2025 01:47:32 :::
Neutral Citation No:=2025:PHHC:004426
CWP-11613-2018 -7-
Field Officer, and could not avail of the remedy under the
Industrial Disputes Act, being not a workman, was also
entitled to be dealt with alike and he could not be singled
out for imposing the punishment of dismissal from
service. In the absence of any special and particular role
assigned to the petitioner, who, at the most, according to
the respondent, was a co-accused, he could not be
subjected to any punishment when Field Assistant
Balwinder Singh had been reinstated into service. The
constitutional guarantee of Articles 14 and 16 is
available to the citizens not only in the matter of equal
treatment during the course of employment, but at the
time of imposing the punishment in disciplinary
proceedings also. The view finds support from the
judgment of Hon’ble the Supreme Court in Sangara
Singh v. State of Punjab, 1983(3) S.L.R. 68, the relevant
extract wherefrom is reproduced below:
“……….the treatment meted to the present
appellants suffers from the vice of arbitrariness
and Article 14 forbids any arbitrary action which
would tantamount to denial of equality as
guaranteed by Article 14 of the Constitution …….
Logically the appellants must receive the same
benefit which those reinstated received, in the
absence of any distinguishing feature in their
cases. Accordingly, the appellants would be
entitled to reinstatement in service.
6. Accordingly, I allow this writ petition and quash
the impugned order dated 26th August, 1988, Annexure
P.9, by which the petitioner was dismissed from service of
the MARKFED. The respondent MARKFED is directed to
reinstate the petitioner with effect from the date he was7 of 43
::: Downloaded on – 01-02-2025 01:47:32 :::
Neutral Citation No:=2025:PHHC:004426CWP-11613-2018 -8-
dismissed from service and on such reinstatement, he
shall be entitled to all the arrears of salary and
allowances along with benefit of seniority, length of
service, etc. to which he would have been entitled, had he
not been dismissed from service in pursuance of the
impugned order. However, in the circumstances of the
case, there shall be no order as to costs.
4. She contends that the Enquiry Officer had recorded in
departmental proceedings that the depot operations were undertaken during
the absence of the petitioner, by the Manager himself and hence, the
Manager could not have been let off by a small liability only for a
supervisory lapse and that recovery of the actual shortage also ought to have
been effected from the Manager. She further contends that the Manager
carried out the operations but did not maintain any record of the specials that
were dispatched and no explanation has also been furnished as to why the
entry in the record about the dispatch of the special had not been made.
Hence, the liability of Desh Raj-Manager was at par with that of the
petitioner.
5. Responding to the above, Counsel for the respondent-Food
Corporation of India submits that a memorandum of charge dated
30.01.2014 containing five charges was served upon the petitioner.
Apprehending a charge-sheet, the petitioner absented himself from duty
from 24.01.2014 till the date of his retirement. The competent authority had
constituted a Committee for serving the charge-sheet at his residence. The
father of the petitioner informed the members of the Committee that the
petitioner was not available at the residence whereupon the memorandum of
8 of 43
::: Downloaded on – 01-02-2025 01:47:32 :::
Neutral Citation No:=2025:PHHC:004426CWP-11613-2018 -9-
charge sheet was pasted on the main gate of his residence at Nabha. The
same was also served upon the petitioner via Registered post on the address
given which was undisputedly received by the petitioner on 04.02.2014. A
Regular Departmental Enquiry was thereafter conducted wherein the
petitioner participated in all the proceedings. The witnesses of the
Corporation were examined in the presence of the petitioner and an
opportunity to cross-examine the said witnesses was also extended to him.
Despite being granted an opportunity to lead evidence, the petitioner did not
adduce any evidence. A detailed enquiry report dated 29.05.2014 was
eventually submitted by the Enquiry Officer wherein all the charges leveled
against the petitioner were held to be proved including causing of loss of
Rs. 18,12,132/- on account of misappropriation of the stock. The operative
part of the Enquiry report submitted by the Enquiry Officer proving the
charge of misappropriation of the stocks is extracted as under:-
ASSESSMENT OF EVIDENCE
On careful consideration of the facts brought on record
during the course of enquiry proceedings, it has come in
evidence that the COs while working as such as such at FSD
Taiwandi Saboo, District Bathinda did not discharge their
duties with absolute integrity and due devotion in as much as
during the course of conducting physical verification of wheat
stocks of FSD Talwandi Saboo by the DO Committee on 100%
weighment, 1117 bags of wheat weighing 948-76-000 Qtls was
found short causing loss of Rs.18,12,132/- as per the details
given under Article-I of charge sheet of the COs. Stack-wise
register was found updated only upto 18.12.2013. At the time of
physical verification, wheat stocks were not found available in9 of 43
::: Downloaded on – 01-02-2025 01:47:32 :::
Neutral Citation No:=2025:PHHC:004426CWP-11613-2018 -10-
open plinth but stock stood in the registers due to non up-dating
of records. 43 bags spillage having mixed with dust and sand
without stitching were round lying in scattered condition at the
time of physical verification as per the details given under
Article-II of the charge sheet of the COs. The gunnies register
was also found updated upto 28.12.2013, therefore, difference
in gunny bales was noticed by the DO Committee as shown
under Article-Ill of the charge sheet of the COs. Further, due to
non maintenance of depot records properly, lapses were noticed
by the DO Committee during the course of physical verification
as shown at Sr. No. 1 to 3 under Article IV of the charge sheet
of the COs. Apart from the above, Shri Kuldip Kumar Sharma,
AG.I(D) was found absent from duty unauthorizedly for the
period from 6.1.2014 to 9.1.2014 and again from 24.1.2014 till
his superannuation on 31.1.2014. He also tampered with the
attendance register for the month of January, 2014 with
impunity.
Shri Subhash Chand, AG.1(D) FCI DO Bathinda who
was produced by the Presenting Officer as PW I while
identifying his signatures as well as the signatures of other
members of the committee and confirming the contents of
prosecution documents placed on record and marked as Ex P-
1(178 pages) has deposed that as per the directions of the Area
Manager, Bathinda, the DO Committee comprising S/Shri
Puran Chand, Manager (Genl), Kumar Triveni Dass, Manager
(QC), Lachhman Dass, Manager (Depot) and himself after
obtaining stack-wise census declaration of wheat stocks as on
24.1.2014, conducted PV of wheat stocks stored at FSD
Talwandi Saboo on 100% weighment in the presence of Shri
Des Raj, Manager (Depot) of FSD Talwandi Saboo and net
shortage of 1117 bags weighing 948-76-000 Qtls. of wheat
stock was detected causing loss of Rs. 18,12,132/- to the
10 of 43
::: Downloaded on – 01-02-2025 01:47:32 :::
Neutral Citation No:=2025:PHHC:004426
CWP-11613-2018 -11-
Corporation as per the details given under Article-I of the
charge sheet of the COs. Shri Des Raj, Manager (D) reported
the members of the committee that Shri Kuldip Kumar Sharma,
AG.I (D) who was the custodian of wheat stocks was not present
on duty in the depot. JHe also reported the DO Committee that
Shri Kuldip Kumar Sharma, AG.I(D) has not updated the stack-
wise ledger since 28.12.2013. At the time of physical
verification, the stock of open plinth was not found available
though the stocks stood in the registers due to non updating of
depot records. 43 spillages, sweeps grain bags having mixed
with dust and sand without stitching were found lying in
scattered condition near stack no. OP/13 as per the details
given under Article-II of the charge sheet of the COs. Due to
non updating of beyond 28.12.2013, variations in gunny bales
was-observed by the DO committee as per the details given
under Article III of the charge sheet.
The PW-1 has further deposed that due to non
maintenance of proper depot records by the said Shri Kuldip
Kumar Sharma, AG.1(D) in respect of FSD Talwandi Saboo,
the following lapses were observed by the DO Committee
during the course of physical verification:-
1. No made up/spillage bags has been shown in the master
ledger during the month of January, 2014. As per stack-
wise register, the stock was available in Stack No. IB/10
but stock was Nil physically.
2. No entry was made in the stack-wise register after
28.12.2013. However, in the month of January, 2014,
8097 bags weighing 3949.90 Qtls. were issued as per
master ledger.
3. Stack-wise register and master ledger were not signed by
the shed in-charges at the time of receipt and issue of
11 of 43
::: Downloaded on – 01-02-2025 01:47:32 :::
Neutral Citation No:=2025:PHHC:004426
CWP-11613-2018 -12-
stocks. A lot of cutting, fluid alteration and over writing
was noticed in the stack wise register.
Shri Kuldip Kumar Sharma, AG.1(D) has admitted
during enquiry that he joined at FSD Talwandi Bhai on
20.5.2013 on transfer from DO Patiala. As per Office
Order No. 47 dated 20.5.2013, he was directed by the
Manager (Depot), FSD, Talwandi Saboo to act as
custodian of stocks lying at the centre i.e. covered and
cap, DSA and gunnies and was further advised in the said
order to count the whole stocks lying at the centre
immediately and run the depot smoothly as a custodian of
stocks. The said CO remained custodian of stocks till his
retirement on 31.1.2014 and this fact has not been
disputed by the CO. It has come in evidence that the CO
was not present in the depot at the time of receipt of
wheat stocks. 446965 bags of wheat had already been
stored in the depot prior to his joining at FSD Talwandi
Saboo. Being custodian of wheat stocks, it was incumbent
on the part of the CO to ensure proper security and safety
of wheat stocks. He ought to have counted the whole
stocks lying at the centre immediately as per the
directions of Manager (Depot) contained in Office Order
No. 47 dated 20.5.2013 and should have brought the fact
of detection of shortage/ irregularity observed if any, to
the notice of Manager (Depot) or the Area Manager,
Bathinda but he did not do so till his retirement but
instead of doing so, he passed the following remarks in
the office Order Register below the Office Order No. 47
dated 20.5.2014 just to escape from his culpability:-
“Noted with the remarks that at the time of receipt
of wheat stocks I was not present and stocks will be taken
over after peripherally counting open and covered. As12 of 43
::: Downloaded on – 01-02-2025 01:47:32 :::
Neutral Citation No:=2025:PHHC:004426CWP-11613-2018 -13-
regards DSA Shri Kapil Kumar, AG.III(D) who is the I/C
of DSA will also assist. In case of any shortage, I will not
be responsible. Moreover, all the stocks were received in
the presence of Shri Balwant Singh, Manager (Depot),
Raman/Talwandi Saboo.” These remarks recorded by the
CO on his own have not been brought to the notice of
either Manager (Depot) or Shri Kapil Kumar, AG.III(D).
It is also in evidence that during the absence
period of Shri Kuldip Kumar Sharma, AG.1(D) from
6.1.2014 to 9.1.2014 and w.e.f. 24.1.2014 onwards, the
depot operation was carried out by Shri Des Raj,
Manager (Depot) himself with the assistance of Sh. Kapil
Kumar, AG.III(D) and special of wheat loaded on
6.1.2014 ex Talwandi Saboo to Gaya was also supervised
by the Manager (D) himself with the assistance of said
AG.III(D) but since Shri Kuldip Kumar Sharma, AG.I(D)
was the custodian of wheat stocks, therefore, it was
incumbent on his part to make necessary entries in the
depot records on his joining on 13.1.2014 but he did not
do so. Had he made the proper entries of receipt and
issue of stocks in the depot records, the variations noticed
by the DO Committee should not have taken place. It
further observed by the DO Committee during physical
verification that the stack- wise register and master
ledger of receipt and issue operations were not signed by
the CO with impunity to escape his responsibility. Instead
of admitting the lapses, the CO has tactfully shifted the
onus of delinquency upon Shri Des Raj, Manager (D) and
Kapil Kumar, AG.III(D) merely by stating that the
requisite entries pertaining to period of his leave were
required to be made by them. The godown were sealed
with paper seal and all the members of the DO13 of 43
::: Downloaded on – 01-02-2025 01:47:32 :::
Neutral Citation No:=2025:PHHC:004426CWP-11613-2018 -14-
Committee signed on the paper seal to the fullest
satisfaction of Shri Des Raj, Manager (D) who had also
signed on the paper seat-therefore, the CO cannot derive
any mileage from the fact of non making of entry of the
same in the log book and the main gate register as
contended by the CO in his defence. The moisture content
was determined by the Committee in the presence of Shri
Jagpal Singh, Manager (QC) of FSD Talwandi Saboo,
therefore, the same cannot be doubted. Regarding sale of
damage wheat stocks to private party of Bhuchcho@ Rs.
600/- per quintal and its subsequent reporting to the
GM® vide his letter dated 3.2.2014 and 10.2.2014 (Ex D-
10(KKS) as alleged by the CO in his defence, the PW-2
namely Shri Des Raj, Manager (D) FSD Talwandi Saboo
during cross examination has categorically deposed that
no wheat stock was damaged during 7.1.2013 to January,
2014. To ascertain the factual position, the said
communications need to be linked while taking decision,
if consider necessary. Apart from this, the CO has also
attached a copy of Fax dated 15/16.10.2014 of Manager
(Depot) Gaya reporting transit shortage against special
loaded ex Raman to Gaya. But the CO has not clarified
as to how much quantity was loaded from Raman and
Talwandi Saboo Depots and as to whether the transit
shortages pertain to the stocks loaded from Talwandi
Saboo or Raman. Therefore, the CO cannot derive any
mileage from the said Fax.
As regards absence of the CO for the period from
6.1.2014 to 9.1.2014, Shri Des Raj, Manager (D) has
deposed during enquiry that the CO was absent from duty
for the said period and accordingly crosses were marked
on these dates against his name in the attendance register
14 of 43
::: Downloaded on – 01-02-2025 01:47:32 :::
Neutral Citation No:=2025:PHHC:004426
CWP-11613-2018 -15-
but the CO removed these crosses with while fluid and
written the word MCL over these dates on his own and
accordingly the matter was reported to the Area
Manager., Bathinda in writing on 10.1.2014. No
explanation of the CO was called for by the Manager (D)
for the said lapse as deposed by the PW-2 during enquiry.
As per instructions in vogue it was obligatory on the part
of the CO to obtain station leave permission from the
controlling authority before leaving the Hqrs. He was
also required to inform the controlling authority about
his alleged illness in writing along-with medical
certificate from the appropriate medical authority
immediately from the date of his alleged illness but he did
not do so but instead requested for grant of 4 days casual
leave for the said period on his joining on 13.1.2014. As
further deposed by the PW-2 the CO submitted leave
application much late on 23.1.2014 along-with medical
certificate and requested for grant of 4 days MCL for the
said period which was forwarded by the Manager (D) on
12.2.2014 (Ex D-I(KKS). To cover up the misdeed he
tampered with the attendance register with impunity. It
was further reported in the said communication of
Manager (D) dated 12.2.2014 that no leave application
for the period from 24.1.2014 to 31.1.2014 has been
received from the CO. The CO has not produced any
document which could establish that the CO has obtained
prior permission of Manager (D) before leaving the Hqrs.
for his home town Nabha and proceeding on leave on
medical ground w.e.f. 24.1.2014 onwards. But the CO
submitted application subsequently addressed m the Area
Manager, Bathinda after his retirement on 10.2.2014 and
requested for grant of MCL for the period 24.1.2014 to
31.1.2014 (Ex D-2(KKS). Before leaving the Hqrs. and
15 of 43
::: Downloaded on – 01-02-2025 01:47:32 :::
Neutral Citation No:=2025:PHHC:004426
CWP-11613-2018 -16-
proceeding on leave on medical ground, it was obligatory
on the part of the CO apprise this fact of his illness to
Manager (D)/controlling authority in writing alongwith
medical certificate of appropriate medical authority but
he did not do so which established the fact that he was
absent from duty unauthorizedly and submitted the
medical certificate subsequently on 10.2.2014 to cover
the period of his absence.
It has further come in evidence that only one
Manager (D) and one AG.III(D) were posted at FSD
Talwandi Saboo which were quite insufficient to handle
22,000 MT capacity. Due to depleted strength of staff, the
Manager (D) FSD Talwandi Saboo requested the Area
Manager, Bathinda vide letters dated 9.7.2013 and
31.7.2014 to post additional depot staff but no staff was
posted at the centre. Since no movement planned ex
Talwandi Saboo for next 2 months, therefore, the request
of the CO for withdrawal of the charge of the stocks and
stores owing to his retirement on 31.1.2014 was not
acceded to by the Area Manager, Bathinda as is evident
from Ex D-12(KKS). It is the prerogative of the
controlling authority to deploy AG.III(D) as joint
custodian of stocks subject administrative feasibility for
which the CO cannot derive any benefit. This above plea
put-forth by the CO in his defence established the fact
that the CO-Shri Kuldip Kumar Sharma, AG.1(D) himself
remained the custodian of stocks of FSD Talwandi Saboo
till his retirement.
It has also come in evidence that complete
documents as demanded by Shri Kuldip Kumar Sharma,
AG.I(D) in his defence have not been supplied by the
concerned controlling authority. By doing so, he has been
16 of 43
::: Downloaded on – 01-02-2025 01:47:32 :::
Neutral Citation No:=2025:PHHC:004426
CWP-11613-2018 -17-
deprived the opportunity to project his defence and to
defend his case during enquiry. The other plea put- forth
by the CO in his defence are not tenable. The CO has
failed to discharge his duties with absolute integrity and
due devotion during his incumbency at FSD Talwandi
Saboo.
As regards Shri Kapil Kumar, AG.III(Depot), it is
in evidence that the CO joined as AG.III(Depot) at FSD
Talwandi Saboo in October, 2011 and discharged his day
to day duties as such as per the directions of Manager
(Depot) and no specific charge of stocks/stores was
assigned to him. As deposed by the PW-2, the CO made
entries in the depot records as per the directions of the
Manager (Depot). Therefore, he is not accountable for
the charges framed against him.
CONCLUSION:-
In light of the overwhelming evidence as has been
brought out above, the charges framed against Shri
Kuldip Kumar Sharma, AG.1(D) vide memorandum dated
30/31.1.2014 are established to the extent indicated
above.
Since Shri Kapil Kumar, AG.III(Depot) during his
incumbency at FSD Talwandi Saboo has discharged his
day to day duties as such as per the directions of
Manager (Depot) and no specific charge of stocks/stores
was assigned to him as stated above, therefore, he is not
responsible for the shortages/other lapses observed by
the DO Committee. Hence, the charges framed against
him vide memorandum dated .31.1.2014 are not
established.
17 of 43
::: Downloaded on – 01-02-2025 01:47:32 :::
Neutral Citation No:=2025:PHHC:004426
CWP-11613-2018 -18-
It has further come in evidence that Shri Des Raj,
Manager (Depot) intimated the storage grains as well as
made up bags of wheat 2013-14 for the month of 11/2013
and 12/2013 (Ex D-2(KK) to the DO Bathinda but in the
next month in January, 2014 he himself had reported to
the Area Manager, Bathinda vide letter dated
22.1.2014(Ex D-3-KK) that all the storage gain as well as
made up bags had fictitious records. This shows that
there was hanky-panky in the depot operations and things
were not going properly. Thus, Shri Des Raj Manager
(D) who joined the depot on 15.7.2013 and supervised the
work of Shri Kuldip Kumar Sharma, AG.(D) is also
accountable for the shortages/other lapses observed by
the DO Committee during the course of physical
verifications. Had he discharged his supervisory duties
effectively, the shortages/other lapses as observed by the
DO committee could have been avoided. He cannot
escape himself from the said shortage/other lapses simply
by reporting the matter to the Area Manager, Bathinda.
While assigning the charge of stocks and stores of
Talwandi Saboo to Shri Kuldip Kumar Sharma, AG.1
(D), Shri Des Raj, Manager (Depot) also directed the
said Shri Kuldip Kumar Sharma, AG.I(D) vide Office
Order No. 47 dated 20.5.2014 to count the whole stocks
lying at the centre immediately. But after passing the said
order, the Manager (Depot) remained a silent spectator
and did not remind him to count the stocks.
Apart from S/Shri Kuldip Kumar Sharma, AG.I (D)
and Kapil Kumar, AG.III(D), the DO Committee (page 3
of Ex P-1) has also indicated the names of the other
officers/Officials who were present in the depot at the
time of receipt/issue of wheat stocks and, therefore, they
18 of 43
::: Downloaded on – 01-02-2025 01:47:32 :::
Neutral Citation No:=2025:PHHC:004426
CWP-11613-2018 -19-
are also accountable for the shortages observed by the
DO committee.”
6. Referring to the above, it is submitted by the Counsel that all
the contentions of the petitioner were duly taken into consideration including
the stock having been verified by the Manager at earlier point of time and no
deficiency detected. It was also specifically reported that the Manager
(depot) had although initially conveyed about the storage record, however,
he himself reported in the month of January, 2014 that there were severe
lapses in the depot operations and the operations were not being run
properly. The charge as regards the shortage of the food stock was returned
to have been proved against the petitioner by the Enquiry Officer after
specifically noticing all the defaults by him prior to the period he proceeded
on leave.
7. He further contends that on receipt of the regular departmental
enquiry, a copy thereof was supplied to the petitioner to submit his
objections, which was submitted on 16.10.2014. Upon careful consideration
thereof, the order of punishment dated 29.01.2015 was passed against the
petitioner imposing punishment of dismissal from service alongwith full
forfeiture of gratuity.
8. A statutory appeal against the said order of punishment was
preferred by the petitioner to the Appellate Authority on 24.02.2015
alongwith the supplementary appeal dated 19.08.2015. Personal hearing was
also granted again to the petitioner on 06.10.2015 as well as on 10.12.2015.
A detailed order was passed in the Appeal on 26/29.09.2016 whereby the
19 of 43
::: Downloaded on – 01-02-2025 01:47:32 :::
Neutral Citation No:=2025:PHHC:004426
CWP-11613-2018 -20-
order of punishment was partly modified from “penalty of dismissal from
service alongwith full forfeiture of gratuity” to that of “Dismissal from
service alongwith 75% forfeiture of gratuity”.
9. A review petition dated 24.11.2016 alongwith the
supplementary review petition dated 09.04.2017 was thereafter preferred by
the petitioner which such review petition was dismissed by a detailed order
dated 25.01.2018.
10. He further contends that the service conditions of the petitioner
are governed by the Food Corporation of India (Staff) Regulations, 1971 and
that the procedure as prescribed under the FCI regulations had been
meticulously followed. Due opportunity of hearing had been duly extended
to the petitioner by all the authorities but the submission of the petitioner
were lacking merit. The charge of misappropriation of 1042 bags was
established despite consideration of all the submissions from the 100%
physical verification of the stock reports, as submitted by the Sub
Committee on 24.01.2014.
11. He further contends that the argument of the petitioner about
similarity of the role as against the Manager Desh Raj is misconceived since
the petitioner was the actual custodian of the record and Desh Raj was only a
supervisory officer. Besides, a separate statement of allegations was served
upon Desh Raj for imposition of minor penalty and a separate order of
punishment was eventually passed. There was no memo of charge being
enquired against the Manager Desh Raj in the enquiry proceedings that had
been initiated against the petitioner. A further reference is also made by the
20 of 43
::: Downloaded on – 01-02-2025 01:47:32 :::
Neutral Citation No:=2025:PHHC:004426
CWP-11613-2018 -21-
Counsel for the respondent to the order dated 28.08.2023 passed by this
Court wherein the petitioner confined her prayer only to the extent of parity
and punishment. The said order is extracted as under:-
1. The petitioner, through instant petition under
Articles 226/227 of the Constitution of India, is
seeking setting aside of order dated 29.01.2015
(Annexure P-8) whereby petitioner has been
dismissed from service along with forfeiture of
gratuity; order dated 26/29.09.2016 (Annexure P-
13) whereby punishment of dismissal from service
has been upheld, however, forfeiture of gratuity
has been reduced to 75% and order dated
25.01.2018 (Annexure P-16) whereby review
petition has been dismissed.
2. Learned counsel for the petitioner, at the
outset, confines her prayer to the extent of parity in
punishment. She submits that as per record and
allegations against the petitioner, the petitioner
was posted at Talwandi Sabo during 2013-15. The
petitioner was custodian of wheat/rice stored at
Talwandi Sabo depot of Food Corporation of
India. Des Raj was Manager of the depot and one
Kapil Kumar was Assistant Grade-III (Depot). The
petitioner on account of illness was not on duty
from 06.01.2014 to 09.01.2014. He was further not
on duty from 24.01.2014 to 31.01.2014 i.e. date of
his retirement. The petitioner concededly did not
seek leave prior to being absent from duty on the
aforesaid dates, however, leave of the petitioner
was ex-post facto sanctioned by competent
authority vide order dated 19.02.2015. Physical
21 of 43
::: Downloaded on – 01-02-2025 01:47:32 :::
Neutral Citation No:=2025:PHHC:004426
CWP-11613-2018 -22-
verification of the stock was conducted on
28.12.2013 and no shortage was found, however, a
special team conducted physical verification on
24.01.2014 and shortage of 1042 bags of wheat
was detected. 1042 bags consisted of 911 quintals
of wheat valued at Rs.18,28,328/- The petitioners
as well as other employees, namely, Des Raj and
Kapil were charge sheeted. The petitioner was
charge sheeted because he was custodian and
responsible for the pilferage. Des Raj was charge
sheeted because he was overall incharge of the
depot and he did not make entry of movement of
stock which took place on 06.01.2014 i.e. in the
absence of the petitioner. There was also charge of
misappropriation against Des Raj. Enquiry was
conducted against petitioner as well as Des Raj.
The petitioner was awarded punishment of
dismissal from service along with forfeiture of
gratuity and Des Raj was awarded punishment of
reduction in time scale of pay by two stages for a
period of 2 years without cumulative effect. In the
punishment order, it was further mentioned that if
recovery is not effected during the remaining
service period of delinquent officer, the same may
be recovered from his terminal/retiral benefits.
3. Learned counsel further contends that Des
Raj was senior of the petitioner and pilferage, if
any, took place in the absence of the petitioner. The
responsibility of Des Raj was on the higher footing
than responsibility of the petitioner especially in
view of the fact that movement of stock took place
in the absence of the petitioner. The petitioner has
22 of 43
::: Downloaded on – 01-02-2025 01:47:32 :::
Neutral Citation No:=2025:PHHC:004426
CWP-11613-2018 -23-
been awarded higher punishment than Des Raj. In
view of principles of parity, the petitioner could not
be awarded higher punishment than punishment
awarded to Des Raj. In the punishment order of
Des Raj, it has been noticed that recovery of loss
would be made from him, however, nothing has
been recovered from Des Raj whereas a sum of
Rs.7.5 Lacs by way of forfeiture of gratuity stands
recovered from the petitioner.
In support of her contention, petitioner relies
upon judgment of Hon’ble Supreme Court in State
of U.P. Versus Raj Pal Singh; 2010 (5) SCC 783
and judgment of this Court in Sadhu Ram Versus
Punjab State Co-op. Supply and Marketing
Federation Ltd; 1991(3) RSJ 280. The relevant
extracts of the said judgments read as:-
State of U.P. Versus Raj Pal Singh
1. This appeal is directed against the
judgment of the High Court of Allahabad
interfering with an order of punishment
inflicted upon the respondent in a
disciplinary proceeding. Admittedly, the
respondent was an Assistant Warder and
the allegation against him was that he
along with four other Assistant Warders
beat one Shivdan Singh, and even though
the senior officers dissuaded them, they
never listened to that. These allegations
were proved in a departmental
proceeding and the disciplinary authority
passed the order of dismissal so far as the
23 of 43
::: Downloaded on – 01-02-2025 01:47:32 :::
Neutral Citation No:=2025:PHHC:004426
CWP-11613-2018 -24-
present respondent is concerned, though
in respect of some others, he passed the
order of stoppage of five increments. The
respondent assailed the legality of the
order by approaching the Public Service
Tribunal. The Tribunal having refused to
interfere, he approached the High Court.
The High Court came to the conclusion
that the charges and the delinquency
being same and identical, and all the
employees having been served with a set
of charges out of the same incident, there
was no justifiable reason to pass different
orders of punishment, and, therefore, the
order of dismissal cannot be sustained.
The High Court consequently set aside
the order of dismissal and directed
stoppage of five increments in case of the
respondent as was the order in case of
some other Assistant Warders. The High
Court further directed that the delinquent
respondent would be paid only 50% of
backwages. It is this order of the High
Court which is the subject- matter of
challenge in this appeal. It is contended
on behalf of the appellants that once the
charges have been held to be established,
it was not appropriate for the High Court
to interfere with the quantum of
punishment and judged from this
standpoint, the order of the High Court
cannot be sustained. In support of the
said contention, reliance is placed on the
24 of 43
::: Downloaded on – 01-02-2025 01:47:32 :::
Neutral Citation No:=2025:PHHC:004426
CWP-11613-2018 -25-
decision of this Court in B. C. Chaturvedi
v. U.O.I, and Ors. 1996 (1) SCT 617: JT
1995 (8) SC 65 and Secretary to
Government, Home Department and Ors.
v. Srivaikundathan, 1991 (1) SCT 715
(SC): JT 1998 (8) SC 470. Though, on
principle, the ratio in aforesaid cases
would ordinarily apply, but in the case in
hand, the High Court appears to have
considered the nature of charges leveled
against the 5 employees who stood
charged on account of the incident that
happened on the same day and then the
High Court came to the conclusion that
since the gravity of charges was the same,
it was not open for the disciplinary
authority to impose different punishments
for different delinquents. The reasonings
given by the High Court cannot be faulted
with since the State is not able to indicate
as to any difference in the delinquency of
these employees. It is undoubtedly open
for the disciplinary authority to deal with
the delinquency and once charges are
established, to award appropriate
punishment. But when the charges are
same and identical in relation to one and
the same incident, then to deal with the
delinquents differently in the award of
punishment, would be discriminatory. In
this view of the matter, we see no
infirmity with the impugned order
25 of 43
::: Downloaded on – 01-02-2025 01:47:32 :::
Neutral Citation No:=2025:PHHC:004426
CWP-11613-2018 -26-
requiring our interference under Article
136 of the Constitution.”
[Emphasis Added]
Sadhu Ram Versus Punjab State Co-op. Supply and
Marketing Federation Ltd.
5. After hearing the learned counsel for the
parties and having gone through the inquiry report
and the impugned order of dismissal passed
thereon, I am of the considered view that the
impugned order dated 26th August, 1988,
Annexure P. 9, is not sustainable in the eye of law.
According to the opening para of the impugned
order, common charges against Jasminder Singh
Sandhu, Sadhu Ram (petitioner) and Balwinder
Singh had been levelled. Further, according to the
report of the Inquiry Officer, all these officers had
acted in a careless and irresponsible manner as all
of them were responsible for maintaining the
stocks. There is no separate role assigned to the
petitioner (Sadhu Ram) either in the inquiry report
or in the impugned order of dismissal from service.
Rather, the learned Managing Director did not
direct his mind to the finding arrived at by the
Judicial Magistrate Ist Class, to the effect that “As
far as Sadhu Ram accused is concerned, he was not
incharge of the open godown and the wheat found
short was not his custody. Therefore, there was not
entrustment to him. He has handed over the charge
this godown to accused Balwinder Singh and
Jasminder Singh on 12.7.83 while the shortage was
found in between 27.12.83 to 28.1.84”. Otherwise
26 of 43
::: Downloaded on – 01-02-2025 01:47:32 :::
Neutral Citation No:=2025:PHHC:004426
CWP-11613-2018 -27-
also, when Balwinder Singh had been reinstated by
the Labour Court, the petitioner, who was a Field
Officer, and could not avail of the remedy under
the Industrial Disputes Act, being not a workman,
was also entitled to be dealt with alike and he
could not be singled out for imposing the
punishment of dismissal from service. In the
absence of any special and particular role assigned
to the petitioner, who, at the most, according to the
respondent, was a co- accused, he could not be
subjected to any punishment when Field Assistant
Balwinder Singh had been reinstated into service.
The Constitutional guarantee of Articles 14 and 16
is available to the citizens not only in the matter of
equal treatment during the course of employment,
but at the time of imposing the punishment in
disciplinary proceedings also. The view finds
support from the judgment of Hon’ble the Supreme
Court in Sengara Singh v. State of Punjab, 1983
(3) S.L.R. 68 the relevant extract wherefrom is
reproduced below:-
“…the treatment meted to the present
appellants suffers from the vice of
arbitrariness and Article 14 forbids any
arbitrary action which would tantamount to
denial of equality as guaranteed by Article
14 of the Constitution…. Logically the
appellants must receive the same benefit
which those reinstated received, in the
absence of any distinguishing feature in their
cases. Accordingly, the appellants would be
entitled to reinstatement in service.”
27 of 43
::: Downloaded on – 01-02-2025 01:47:32 :::
Neutral Citation No:=2025:PHHC:004426
CWP-11613-2018 -28-
[Emphasis Added]
4. Mr. K.K Gupta, learned counsel for the
respondents submits that charges levelled against
Des Raj were entirely different from charges
levelled against the petitioner. The petitioner was
custodian of the stock whereas Des Raj was
incharge of the depot. Des Raj handled the stock
because petitioner was absent from duty. On
account of handling of stock on one particular
occasion, Des Raj could not be awarded same set
of punishment as has been awarded to petitioner
who was custodian of the stock.
5. On being confronted with the fact that as
per petitioner no recovery has been made from Des
Raj, Mr. Gupta, seeks short accommodation to
verify factual position.
6. Adjourned to 13.09.2023.”
12. He contends that in compliance to the above said order, a
supplementary affidavit of 11.09.2023 was filed wherein the distinction
between the role of the petitioner viz.-a-viz. the role of Desh Raj was
specifically culled out and it was explained as to why separate penalties have
been imposed upon both the persons. The relevant extract of the said
affidavit reads thus:
1. That the deponent has gone through the order
dated 28.08.2023 passed by this Hon’ble Court and
has noticed certain factual errors in the order
which, with utmost respect to this Hon’ble Court,
are pointed out as under:
28 of 43
::: Downloaded on – 01-02-2025 01:47:32 :::
Neutral Citation No:=2025:PHHC:004426CWP-11613-2018 -29-
i. the petitioner remained posted as Assistant
Grade-I (Depot) at Food Storage Depot,
Talwandi Sabo from 20.05.2013 to
31.01.2014 (i.e. till his retirement) and not
during 2013-2015.
ii. the petitioner was the sole custodian of the
stock of food grains. Sh. Kapil Kumar, AG-
III (Depot) was not the custodian of the stock
in any manner. During the unauthorized
absence of the petitioner from 06.01.2014 to
09.01.2014, the Railway Authorities
provided special railway wagons for loading
of the food grains which could not have been
avoided as otherwise the Railway heavy
Authorities imposed heavy amount of
demurrage, therefore, Sh. Des Raj who was
Manager (Depot) had to carried out the
operation for loading of the special wagons
with the assistance of Sh. Kapil Kumar, AG-
III (Depot). In the said operation / movement
of food grains, no stock was misappropriated
so much so no quality complaint was
received from destination. This fact
would be clear on perusal of the letter dated
22.11.2014 sent by the Area Manager,
District Office, Bathinda to the
Assistant General Manger (Vigilance),
FCI Regional Office, Punjab, Chandigarh, a
copy of which is attached as Annexure R-3
(Annexure R-1 & R-2 are already on
record).
29 of 43
::: Downloaded on – 01-02-2025 01:47:32 :::
Neutral Citation No:=2025:PHHC:004426
CWP-11613-2018 -30-
iii. Sh. Des Raj, Manager (Depot) was not
charge sheeted for any misappropriation of
stock but was only charge sheeted vide
Memorandum dated 21.10.2015 (Annexure
P-9) and punished vide order dated
20.05.2016 (Annexure P-10) for gross
negligence in supervision because of the
misconduct of the petitioner who was
working under him. The recovery from Sh.
Des Raj was not on account of any loss but
was ordered to be made in the punishment
order dated 20.05.2016 (Annexure P-10) on
account of reduction in time scale of pay by
two stages for a period of two years and the
same was duly recovered by the District
Office, Gurdaspur, where he was transferred
subsequently, before his retirement.
iv. the physical verification of the stock
conducted on 28.12.2013 was quarterly
physical verification wherein only the
number of bags were counted and not the
quantity of the food grains (Wheat/ Rice) and
at that time no shortage of bag of food grains
was found as is clear on perusal of the
physical verification report dated
31.12.2013, a copy of which is attached as
Annexure R-4. The physical verification
conducted on 24.01.2014 was by a special
team constituted on receiving of the
complaint of shortages caused by the
petitioner wherein 100% physical
verification was conducted as per the
30 of 43
::: Downloaded on – 01-02-2025 01:47:32 :::
Neutral Citation No:=2025:PHHC:004426
CWP-11613-2018 -31-
physical quantity of the stock which was
under the sole custody of the petitioner.
v. The shortage noticed in the order dated
28.08.2023 passed by this Hon’ble Court is
also not correctly mentioned in the order. If
the charge sheet (Annexure P-4), Enquiry
Report (Annexure P-6) and the punishment
order (Annexure P-8) is perused, it would be
clear that the shortage was 948-76-000
quintals found in 1117 bags, which was
valued for Rs. 18,12,132/-. The loss on
account of gunny bags was for a sum of Rs.
16,196/- and thereby the total loss was Rs.
18,28,328/-, on account of food grains and
gunny bags and not only on account of •
food grains.
vi. Unauthorized absence from duty of the
petitioner and later on forging the
attendance register by him, was proved in
the enquiry against the petitioner and the
said period was subsequently regularized
and not treated as break in service, after his
retirement so as to released his retiral
benefits. But the same does not construed as
condoning the unauthorized absence which
was already proved in the Departmental
Enquiry.
vii. since the petitioner was AG-I (Depot) and
was the sole custodian of the stock wherein
huge shortages were found, as detailed
above, whereas Sh. Des Raj was the Manger
31 of 43
::: Downloaded on – 01-02-2025 01:47:32 :::
Neutral Citation No:=2025:PHHC:004426
CWP-11613-2018 -32-
(Depot) who was discharging the
supervisory duties and no misappropriation
of stock etc. was attributed to him and since
the petitioner was charge sheeted under
Regulation 58 read with Regulation 50
of the FCI (Staff) Regulations, 1971 (for
major penalty proceedings) whereas Sh.
Des Raj was charge sheeted under
Regulation 60 (for minor penalty
proceedings) and charges against both of
them were different, therefore, the petitioner
cannot seek parity in the matter of awarding of the
punishment. The judgments cited by the petitioner
in this regard, deals with the situation wherein
common charges were leveled and all of them were
responsible for maintaining the stock, therefore,
the said judgments have no relevance with the facts
of the present case.
13. It is submitted by him that the petitioner was the sole custodian
of the stock where huge shortage was found and that Desh Raj was the
Manager (Depot) who was discharging the supervisory duty and no
misappropriation of the stock etc. was attributed to him. Since the petitioner
was charge-sheeted under Regulation 58 read with Regulation 50 of the
Food Corporation of India (Staff) Regulations, 1971 (for major penalty
proceedings) whereas Desh Raj was charge sheeted under Regulation 60 (for
minor penalty proceedings) hence, charges against both the persons were
different and as such the petitioner cannot seek parity in the matter of
awarding of punishment. He thus contends that the judgments relied upon by
the petitioner would not be applicable to the facts of the present case since in
32 of 43
::: Downloaded on – 01-02-2025 01:47:32 :::
Neutral Citation No:=2025:PHHC:004426
CWP-11613-2018 -33-
the said cases, the delinquent employees were issued similar charge sheet for
the same lapses/defaults. He further contends that against the order passed
by the authorities about forfeiture of the gratuity of the petitioner, he also
preferred a petition before the Controlling Officer under the Payment of
Gratuity Act, 1972. The competent authorities thereunder passed an order
for release of the gratuity which was affirmed by the Appellate Authority as
well. Both these orders were a subject matter of challenge in CWP-15274 of
2020 which was allowed vide judgment dated 14.12.2020 and the orders
directing the respondent-FCI to release gratuity in favour of the petitioner
was set aside. Reliance is also placed on the judgment of the Hon’ble
Supreme Court in the matter of “Govt. of A.P and others versus Mohd.
Nasrullah Khan” to contend that in a writ jurisdiction, the High Court does
not re-appreciate the evidence and it cannot ordain upon itself the role of
Appellate Authority. The jurisdiction is circumscribed and confined to
correct the errors of law and the procedure resulting in manifest miscarriage
of justice or violation of principles of natural justice and not in reference to
adjudication on merits. The operative part of the said judgment reads thus:-
“9. The High Court, while upsetting the order of
the Tribunal dated 4.4.03 passed in O.A. No. 8066/01 and
order of dismissal dated 21.1.2000 confirmed by the
Appellate Authority dated 20.10.2001, recorded its
finding in paragraph 5 of its judgment as under:
“There is no dispute that the petitioner was posted
on Bando-bust duty on the relevant date and the
entire premises was under close circuit T.V.
System. The question is whether the petitioner has
33 of 43
::: Downloaded on – 01-02-2025 01:47:32 :::
Neutral Citation No:=2025:PHHC:004426
CWP-11613-2018 -34-
committed the theft of camera lens. There is no
direct evidence on this aspect. It is only on
presumption that when once the camera was not
relaying the pictures, the officials of Oracle
company came to that place where the camera was
positioned and found that the lens was not
available with the camera. Even the witnesses
examined on this aspect namely the employees of
Oracle Company did not state that the petitioner
had committed theft of the lens and further it is on
record that the electrician himself traced out the
camera lens which was lying outside toilet room
and the entire premises was carpeted. No other
independent officer has been examined to establish
that the petitioner had committed theft. However,
we see from the report of the Enquiry Officer that
he got the cassette displayed and noticed the
movements of the petitioner, sitting on chair,
getting up and coming towards the camera and
touching the lens of camera (hand is clearly
visible) between 13-58 and 13-59 hours on
24.3.2000. But this is not the function of the
Enquiry Officer. It must be established by the
independent evidence. When we directed the
learned Government pleader and the learned
Counsel for the petitioner to again view the
cassette, they stated that the visibility is beyond
recognition. In such circumstances, it has to be
held that the findings of the Enquiry Officer
appears to be based on mere surmises and
conjectures and it is finding based on no evidence.
In such situation, the Tribunal ought to have held
that the Enquiry is vitiated for lack of acceptable
34 of 43
::: Downloaded on – 01-02-2025 01:47:32 :::
Neutral Citation No:=2025:PHHC:004426
CWP-11613-2018 -35-
and permissible evidence on this aspect. It is also
on record that the lens was not recovered from the
person of the petitioner and admittedly the
petitioner was on guard duty in the premises where
the cameras were positioned. In such a situation, it
cannot be said that simply because, the lens of one
camera is missing, the petitioner committed theft of
it. If really the police had conducted investigation,
they could have sent the lens to the Forensic expert
with reference to the fingerprints and that could
have made the matters clear. But for the reasons
best known to the police, they did not take such
action and tried to find fault with the police
constable fastening the charge of theft. Under these
circumstances, we are of the considered view that
the Tribunal filed to take into consideration this
aspect and held that the Enquiry was conducted
properly and finding was validly recorded.”
From the finding recorded by the High Court it clearly
appears that the High Court re-appreciated the evidence
as an Appellate Authority. Apart from re-appreciating the
evidence, which is not permissible in law, the High Court
also fell in grave error by directing the Govt. Pleader and
the learned counsel for the respondent herein to again
view the cassettes. It is on record that the Inquiry Officer
relied on the video cassettes displayed during the Inquiry
as part of additional evidence. The finding has been
clearly recorded by the Inquiry Officer on the basis of the
evidence adduced by PWs. 1, 2, 3 and 4 during the
Inquiry.
10. By now it is a well-established principle of law that
the High Court exercising power of judicial review under
35 of 43
::: Downloaded on – 01-02-2025 01:47:32 :::
Neutral Citation No:=2025:PHHC:004426
CWP-11613-2018 -36-
Article 226 of the Constitution does not act as an
Appellate Authority. Its jurisdiction is circumscribed and
confined to correct errors of law or procedural error, if
any, resulting in manifest miscarriage of justice or
violation of principles of natural justice. Judicial review
is not akin to adjudication on merit by re-appreciating
the evidence as an Appellate Authority.
11. We may now notice a few decisions of this Court on
this aspect avoiding multiplicity. In Union of India v.
Parma Nanda, (1989)2 SCC 177, K. Jagannatha Shetty,
J., speaking for the Bench, observed at page SCC 189 as
under:
“We must unequivocally state that the
jurisdiction of the Tribunal to interfere with
the disciplinary matters or punishment
cannot be equated with an appellate
jurisdiction. The Tribunal cannot interfere
with the findings of the Inquiry Officer or
competent authority where they are not
arbitrary or utterly perverse. It is
appropriate to remember that the power to
impose penalty on a delinquent officer is
conferred on the competent authority either
by an Act of legislature or rules made under
the proviso to Article 309 of the Constitution.
If there has been an enquiry consistent with
the rules and in accordance with principles
of natural justice what punishment would
meet the ends of justice is a matter
exclusively within the jurisdiction of the
competent authority. If the penalty can
lawfully be imposed and is imposed on the36 of 43
::: Downloaded on – 01-02-2025 01:47:32 :::
Neutral Citation No:=2025:PHHC:004426CWP-11613-2018 -37-
proved misconduct, the Tribunal has no
power to substitute its own discretion for that
of the authority. The adequacy of penalty
unless it is mala fide is certainly not a matter
for the Tribunal to concern itself with. The
Tribunal also cannot interfere with the
penalty if the conclusion of the Inquiry
Officer or the competent authority is based
on evidence even if some of it is found to be
irrelevant or extraneous to the matter.”
12. Again, the same principle has been reiterated
by this Court in B.C. Chaturvedi v. Union of India
& Ors., 1996(1) SCT 617: (1995)6 SCC 749. K.
Ramaswamy, J., speaking for the Court, observed
at page SCC 759 as under:
“Judicial review is not an appeal from a
decision but a review of the manner in which
the decision is made. Power of judicial
review is meant to ensure that the individual
receives fair treatment and not to ensure that
the conclusion, which the authority reaches,
is necessarily correct in the eye of the court.
When an inquiry is conducted on charges of
misconduct by a public servant, the
Court/Tribunal is concerned to determine
whether the inquiry was held by a competent
officer or whether rules of natural justice are
complied with. Whether the findings or
conclusions are based on some evidence, the
authority entrusted with the power to hold
inquiry has jurisdiction, power and authority
to reach a finding of fact or conclusion. But37 of 43
::: Downloaded on – 01-02-2025 01:47:32 :::
Neutral Citation No:=2025:PHHC:004426CWP-11613-2018 -38-
that finding must be based on some evidence.
Neither the technical rules of Evidence Act
nor of proof of fact or evidence as defined
therein, apply to disciplinary proceeding.
When the authority accepts that evidence
and conclusion receives support therefrom,
the disciplinary authority is entitled to hold
that the delinquent officer is guilty of the
charge. The Court/Tribunal in its power of
judicial review does not act as appellate
authority to appreciate the evidence and to
arrive at its own independent findings on the
evidence. The Court/Tribunal may interfere
where the authority held the proceedings
against the delinquent officer in a manner
inconsistent with the rules of natural justice
or in violation of statutory rules prescribing
the mode of inquiry or where the conclusion
or finding reached by the disciplinary
authority is based on no evidence. If the
conclusion or finding be such as no
reasonable person would have ever reached,
the Court/Tribunal may interfere with the
conclusion or the finding and mould the
relief so as to make it appropriate to the
facts of each case.”
As already said, in the present case there is no
allegation of violation of principles of natural
justice or the inquiry being held inconsistent with
the mode of procedure prescribed by the rules or
regulations.”
38 of 43
::: Downloaded on – 01-02-2025 01:47:32 :::
Neutral Citation No:=2025:PHHC:004426
CWP-11613-2018 -39-
14. A similar position in law was reiterated by the Hon’ble
Supreme Court in the matter of “State Bank of India and others versus
Ramesh Dinkar Punde” reported as 2006 (4) S.C.T 61 wherein it was held
that it is not permissible for the High Court to re-appreciate the evidence that
had already been considered by the Inquiry Officer, the disciplinary
authority as well as the Appellate Authority. The High Court in its powers of
judicial review cannot sit over the findings of the disciplinary authority as an
appellate court/authority. The operative part of the judgment reads thus:-
“6. Before we proceed further, we may observe at
this stage that it is unfortunate that the High Court has
acted as an appellate authority despite the consistent
view taken by this Court that the High Court and the
Tribunal while exercising the judicial review do not act
as an appellate authority. Its jurisdiction is
circumscribed and confined to correct errors of law or
procedural error, if any. resulting in manifest
miscarriage of justice or violation of principles of natural
justice. Judicial review is not akin to adjudication on
merit by re-appreciating the evidence as an Appellate
Authority. (See Govt. of A.P. and Ors. (appellant) v.
Mohd. Nasrullah Khan (respondent). 2006(1) SCT 588:
(2006) 2 SCC 373 at page SCC 379).
15. Reference is also made to the judgment of the Hon’ble Supreme
Court in the matter of “R.S. Saini versus State of Punjab” reported as 1999
(8) SCC 90 to contend that once the disciplinary authority has taken into
consideration sufficient material available on record alongwith the
explanation of the delinquent submitted in writing as also the arguments
through the Counsel, the conclusions which are well founded cannot be
39 of 43
::: Downloaded on – 01-02-2025 01:47:32 :::
Neutral Citation No:=2025:PHHC:004426
CWP-11613-2018 -40-
interfered with by a writ Court. The operative part of the said judgment
reads thus:-
“16. A narration of the charges and the
reasons of the enquiring authority for accepting the
charges, as seen from the records, shows that the
enquiring authority has based its conclusions on
materials available on record after considering the
defence put forth by the appellant and these
decisions, in our opinion, have been taken in a
reasonable manner and objectively. The conclusion
arrived at by the enquiring authority cannot be
termed as either being perverse or not based on
any material nor is it a case where there has been
any non-application of mind on the part of the
enquiring authority. Likewise, the High Court has
looked into the material based on which the
enquiry officer has come to the conclusion, within
the limited scope available to it under Article 226
of the Constitution and we do not find any fault
with the findings of the High Court in this regard.
18. We have noted earlier, that the scope
of judicial review in matters of this nature being
restricted, the High Court had to consider the
challenge to the impugned order with a limited
degree of scrutiny that was called for. We too have
considered the complaint within that limited scope
in order to find out the correctness of the
allegation that the impugned order of the
disciplinary authority suffered from the vice of
perversity, non-application of mind and tainted by
malice and having come to the conclusion that the
40 of 43
::: Downloaded on – 01-02-2025 01:47:32 :::
Neutral Citation No:=2025:PHHC:004426
CWP-11613-2018 -41-
report of the requiring authority cannot be faulted
with on any of the grounds stated above, we are
unable to agree with the appellant. For the reasons
stated above, this appeal fails and is hereby
dismissed. No costs.”
16. I have heard learned Counsel appearing on behalf of the
respective parties and have gone through the documents available on record.
17. The Counsel for the petitioner has emphatically argued that
certain findings were also recorded by the Enquiry Officer against
respondent-Desh Raj while conducting the Enquiry against the petitioner.
and that certain relevant documents as were necessary for him to prove his
case had not been supplied to him. The Counsel has been confronted that the
said argument would require re-appreciation of evidence and merits of the
findings recorded in the enquiry report whereas, as per the order dated
28.08.2023, she had already confined her prayer to the extent of claiming
parity with Desh Raj, Manager. The specific contention raised was that there
was an allegation of mis-appropriation against Desh Raj as well. An
argument was also raised that the pilferage took place under Desh Raj. It
was in the said background that respondent Counsel was directed to file an
affidavit. The needful was done on 11.09.2023 pointing out that there was no
allegation of any pilferage or misappropriation of stock against Desh Raj and
he was issued a show cause for a supervisory lapse only. Detailed narrative
about the shortage having occurred during the period of actual control of
petitioner was specifically submitted with a specific claim about there being
no loss in loading of special on 06.01.2014. Despite a lapse of more than an
41 of 43
::: Downloaded on – 01-02-2025 01:47:32 :::
Neutral Citation No:=2025:PHHC:004426
CWP-11613-2018 -42-
year since filing of the affidavit, the specific content of the affidavit remains
undisputed. Thus, a valid distinction between the allegations, the role, the
responsibilities, the charge and the penalties have been drawn. The same
having been done by the respondent, the petitioner would be estopped from
seeking to re-agitate the merits after the challenge had already been
confined.
18. Under the given circumstances, the facts as noticed above
remain uncontroverted. The petitioner cannot claim any parity with
Manager-Desh Raj against whom only a supervisory lapse has been
established and proved. Thus, a differential punishment could be imposed by
the competent authority on a person who was the actual custodian of the
stock, with respect to any deficiency/shortage so noticed, against a person
who was not. A mere submission of an affidavit by the petitioner that he had
taken over the stock on a peripheral calculation and did not carry out an
actual physical verification cannot be accepted as a ground sufficient to
absolve the petitioner of his responsibility to carry out a physical
verification. It is also noticed that the petitioner was transferred to Talwandi
Sabo on 20.05.2013 and the purported affidavit is of June, 2013. It was
incumbent upon the petitioner to have exercised due care and caution while
carrying out a verification of the stock and it would not be open to him to
thereafter, contend that since he had not carried out a physical verification of
the stock, hence, he cannot be held liable for any deficiency/shortage
therein. Having taken over the charge of the stocks, the petitioner cannot
claim a partial unverified takeover of stock. It would create a very absurd
42 of 43
::: Downloaded on – 01-02-2025 01:47:32 :::
Neutral Citation No:=2025:PHHC:004426
CWP-11613-2018 -43-
administrative situation if every person taking over charge were to behave
similarly and more so when stock is the only thing to be taken over while
transferring the charge. Each person who occupies that position takes over
stock from an earlier incumbent and can’t be held accountable for the stock
that he handed over to another. Additionally there is no bar at carrying out a
verification and if petitioner preferred his convenience over prudence, he has
to accept accountability.
19. The position in law having been well settled that the scope of
interference by a writ Court in a judicial review against orders passed in
disciplinary proceedings is limited. The High Court would not sit as a Court
of appeal to supplant its own decision for that of the competent authorities. I
find that no such grounds have been made out as would demonstrate that
there is a violation of principles of natural justice or the necessary evidence
has not been considered by the competent authorities. Besides, the
punishment cannot be said to be shockingly disproportionate considering the
gravity of proven charge against him.
20. The present writ petition is accordingly dismissed. The orders
passed by the Appellate Authority dated 26/29.09.2016, modifying the
punishment to that of “Dismissal from service alongwith 75% forfeiture of
Gratuity” and that of Reviewing Authority dated 25.01.2018 confirming the
same are hereby affirmed.
(VINOD S. BHARDWAJ)
JANUARY 13, 2025 JUDGE
Vishal Sharma
Whether speaking/reasoned : Yes/No
Whether Reportable : Yes/No
43 of 43
::: Downloaded on - 01-02-2025 01:47:32 :::
[ad_1]
Source link