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Judgment
Ajay Tewari, J.—The petitioner was appointed as Store keeper on 30.01.1980 and he joined his duties on 09.02.1980. He was working to the entire satisfaction of his superiors and was made regular but he was put under suspension on 4.11.88 and was subsequently reinstated without prejudice to the action taken against him in inquiry. Before reinstatement a charge sheet was also issued to him on 22.8.89 making charges relating to negligence in performance of his duties and dishonestly black marketing edible oil. These charges were based on the report given by the then R.S.O. He submitted reply to the chargesheet denying the allegations levelled therein but the disciplinary authority was not satisfied with the said reply and the Area Manager, Confed Area Office, Nuh was deputed as an inquiry officer. The inquiry was not conducted properly since the important witnesses were not examined. The petitioner along with three others was held responsible for black marketing and second charge was also proved against him and strict disciplinary action was suggested to be taken. On the basis of this inquiry report a show cause notice was issued to the petitioner for awarding severe punishment of termination of his services. The petitioner again replied to the show cause notice reiterating his earlier stand. He was exonerated for the first charge but was held responsible for the second charge along with other co-accused and his services were terminated. The petitioner went in appeal against the said order to respondent No. 2 stating that respondent No. 1 was not competent to pass the impugned order but the respondent No. 2 dismissed the appeal. Now the grievance of the petitioner is that his co-accused who were also held responsible for the second charge have not been awarded any punishment whereas he has been awarded the major penalty of removal from service which is violative of Articles 14 and 16 of the Constitution. In reply filed by respondent No. 1 the stand taken is that the inquiry officer conducted the inquiry in a fair and proper manner. It is further averred that suitable disciplinary action was also taken against the other co-accused also and they were no more in service and that the impugned orders are perfectly valid and legal and are not liable to be quashed.
Learned counsel for the petitioner has argued it is an admitted fact that the first charge of negligence in performing his duties by the petitioner was not proved against him and as regards the second charge with regard to black marketing of edible oil, he has argued that the same is based on no evidence at all. The inquiry officer did not examine the depot holders and not even considered the statement of salesman. He has further argued that the major punishment of removal from service cannot be inflicted on an employee only on the basis of inferences without there being any material evidence. Learned counsel has further argued that the petitioner used to supply the material i.e. oil in retail on a mobile van and he never received the stock directly. It was the salesman who used to receive the stock and on the recommendation of the area manager from time to time the petitioner used to sell the same in retail. He has further argued that the statement of sales man Zahoor Khan corroborating the version given by the petitioner was not taken into consideration by the inquiry officer. The cash amount collected by sale of edible oil w.e.f. 31.3.88 to 3.4.88 totalling to Rs. 37,438.75 ps was deposited in the bank on 3.4.88 which showed that the sale continued up to 3.4.88 and this fact was also brought to the notice of the inquiry officer but he did not pay any heed to it.
Learned counsel for the petitioner has further argued that the similarly situated employees who were also charged along with the petitioner, were not awarded any punishment and the petitioner was awarded the major punishment of removal from service and this action of the respondents is violative of Articles of 14 and 16 of the Constitution. On this point he has relied upon Sangara Singh and others v. State of Punjab and others reported as 1983 (3) SLR 685 wherein it has been held that while awarding the punishment to similarly situated employees, against whom the same and similar charges were levelled, they should be treated equally but awarding different punishment certainly amounts to denial of equality guaranteed by Article 14 of the Constitution of India to them. He has thus argued that the orders passed by respondents No. 1 and respondent No. 2 Annexures P-8 and P-10 respectively are liable to be quashed being unsustainable in the eyes of law and the petitioner be ordered to be taken back in service.
Learned counsel for the petitioner has further argued that no financial loss has been caused to the CONFED. He has further argued that the respondent No. 1 was not competent to pass the order of termination of service of the petitioner as under the Staff Service Rules of the Federation Corporation only the appointing authority was competent to pass such orders and as per Rule 9.1 of the said rules the appointing authority of the petitioner is the Board of Directors of the Federation.
Learned counsel for the respondents, on the other hand, has argued that the orders passed by the respondents are well reasoned and based on sufficient evidence. As per him there was no need of examining the salesman or the depot holders as alleged by the petitioner as the edible oil which was sold in the market was to be sold through mobile vans and not through the depot holders. He has argued that the conduct of the petitioner was not above board and a commercial organisation which is dealing in public distribution schemes cannot afford to retain such person. He has further argued that against the other co-employees disciplinary action was taken as per law and there is no violation of Articles 14 or 16 of the Constitution of India. His case has been differentiated with the other co-employees. As per him the charge of black marketing was duly proved against the petitioner in departmental inquiry.
After hearing both the sides I am of the view that the arguments of learned counsel for the petitioner carry more weight. The petitioner being a store keeper was to supply edible oil only on the receipt of a bill for the same. He along with one Zahoor Khan was deputed on a mobile van to sell the edible oil in retail. There is no evidence which could show that the petitioner was involved in black marketing of the edible oil. The report given by the inquiry officer cannot be said to be prepared after thoughtful consideration. The inquiry officer has not examined any material witnesses and has eve not taken into consideration the statement of sales man Zahoor Khan and straight away recommended for the removal of the petitioner from service for black marketing edible oil whereas the charge of black marketing has not been proved against him. Thus, in my considered opinion the inquiry conducted against him is vitiated as being based on conjectures and surmises without there being any positive evidence.
The Hon''ble Supreme Court in the case of Indian Oil Corporation Ltd. and another Vs. Ashok Kumar Arora, held as follows:
.. At the outset it needs to be mentioned that the High Court in such cases of departmental enquiries and the findings recorded therein does not exercise the powers of appellate court/Authority. The jurisdiction of the High Court in such cases is very limited. For instance where it is found that the domestic enquiry is vitiated because of non-observance of principles of natural justice, denial of reasonable opportunity; findings are based on no evidence, and or the punishment is totally disproportionate to the proved misconduct of an employee. There is catena of judgments of this Court which had settled the law on this topic and it is not necessary to refer to all these decisions. Suffice is to refer to a few decisions of this Court on this topic viz. State of Andhra Pradesh Vs. Sree Rama Rao, , State of Andhra Pradesh and Others Vs. Chitra Venkata Rao, , Corporation of the City of Nagpur, Civil Lines, Nagpur and another Vs. Ramchandra and others, and Nelson Motis Vs. Union of India and another, .
Resultantly this petition is allowed and the impugned orders are set aside. The petitioner is ordered to be taken back in service with effect from the date of his removal with all consequential benefits.