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Judgment
Justice S. Muralidhar
The Petitioner challenges an order dated 17th April 1996 of the Managing Director and Disciplinary Authority (''DA'') of the Respondent, Tribal Cooperative Marketing Development Federation of India Ltd. (''TRIFED''), imposing on the Petitioner a major penalty of reversion in rank from Assistant Engineer (''AE'') to Junior Engineer (''JE'') and further ordering that an amount of Rs. 1,20,300/- be recovered from him in twenty four equal installments commencing from the month of May 1996. The Petitioner also challenges an order dated 12th/14th November 1996 whereby the decision of the Board of Directors at its meeting on 8th October 1996 rejecting the Petitioner''s appeal was communicated to him. The decision was to the effect that the installments for recovery may be increased to such a reasonable extent that the Petitioner does not face any financial hardship. The Petitioner was appointed as AE in TRIFED with effect from 12th October 1990. On 19th November 1991, he was transferred to the Phuloni Project in Assam as Project Incharge for the period 24th February 1992 to 8th June 1992. The Petitioner was responsible for the purchase of firewood for running the Java Citronella (''JC'') (grass) Distillation Unit. It is stated that the final product, JC oil, is used as a mosquito repellant. According to the Petitioner, there were 8 such units which required 8 quintals of firewood. The 8 units according to the Petitioner would require an average of 840 quintals of firewood per month.
The Petitioner states that he proceeded on leave from 18th November 1993. He requested Mr. Singson who was an Assistant Manager (''AM'') and superior to the Petitioner, to complete the formalities of placing fresh orders for supply of firewood. It is stated that Mr. Singson obtained the approval of the Zonal Manager (''ZM''), Mr. Bachchu Ram, for purchase of firewood from Mr. Kang Rongpi at the approved rate of Rs. 75/- per quintal without specifying the quantity to be produced. It is stated that Mr. Singson then placed orders for 5826 quintals of firewood with supply orders dated 16th December 1993, 11th December 1993, 17th December 1993 and 22nd December 1993. It is stated that Mr. Singson did not obtain approval for purchase of the above quantities of firewood either before placing the order or even subsequent to the completion of the supply.
When the Petitioner returned from leave on 4th January 1994, he found that 5826 quintals of firewood had already been purchased and that this was indeed in excess of the requirement. Meanwhile, the supplier was pressing for payment. A part payment for 2300 quintals was made by cheques between 8th January 1994 and 1st February 1994. A note was sent on 2nd February 1994 to the ZM for post facto approval for the purchase of 5826 quintals and also for the part payment of 2300 quintals. The approval was granted on 7 February 1994. According to the Petitioner, the rate of Rs. 75/- per quintal also stood approved by the competent authority. The Petitioner states that on the eve of his departure from Phuloni on 3rd June 1994, there was a balance of 5757.79 quintals in stock which was then handed over by him to Mr. Singson. He has referred to the handing over report. The balance stock as on 9th May 1994 was 5801.44 quintals of firewood.
An inquiry was commenced against the Petitioner by an office order dated 13th July 1995 and the Petitioner was placed under suspension. There were six articles of charge against the Petitioner. The Inquiry Officer (''IO'') found that the charge of the Petitioner not observing the correct procedure for purchase of the firewood and the charge that he allowed the purchase of the huge quantity of 5826 quintals of firewood disproportionate to the actual requirement were held to be not proved. It was held that it was Mr. Singson, his superior, who as the AM was responsible on both these counts and that no liability could be fastened on the Petitioner.
The third article of charge was that after joining on 4th January 1994, the Petitioner did not seek any clarification from either Mr. Singson or the accountant, Mr. Berman, and instead defended their actions stating that they had purchased firewood in bulk due to the approaching monsoon. He was found to have released payment to the supplier. He was found guilty of the charge of lack of supervision, control and collusion with subordinates for the purpose of extracting payment from TRIFED disproportionate to actual requirements.
The fourth charge was that the Petitioner failed to verify whether the price fixed for the purchase was reasonable. He was found guilty of this charge. Finally it was held that the quantities of firewood in respect of which the payments had been allowed did not exist. The Petitioner was found guilty of this charge as well.
As regards the last article of charge, the IO was basically relying on the endorsement made by Mr. Bachchu Ram, the ZM, on a note of the Petitioner dated 2nd February 1994 seeking his approval. The Petitioner''s case is that Mr. Bachchu Ram had in fact recorded "approved" on the left corner of the said letter but later in a different ink, the word "not" was inserted prior to the word "approved". Also a narration was inserted to the effect that "I am unable to approve for this payment of Fire Wood because there is no approval for this purchasing of big quantity of Fire Wood from HO or ZM". The said noting as well as the word "not" were in a different ink.
Interestingly, prior to the holding of the actual inquiry, a fact finding had been undertaken by the AGM (Finance) Mr. M.R. Maurya. His detailed tour report formed part of the records of the inquiry and has been referred to by Mr. Ashwin Vaish, learned counsel for the Petitioner. In regard to note of Mr. Bachchu Ram, Mr. M.R. Maurya observed as under:-
"SH. BACCHU RAM, A.G.M.:-
i. As reported at page 9 (para ''B'') and page 12 (para 7), Sh. Bacchu Ram, AGM, while looking at the contents of Sh. K.K. Raul''s Note dt. 2.2.94, should have visited Phuloni and inspected Stocks and state of payments made and office-working etc. As Zonal Manager Gauhati, it is expected from him.
ii. As far as making additions to his remarks dtd. 7.2.94 on Sh. K.K. Kaul''s note dt. 2.2.94 (refer para 7 at page 12 and annex. 75-P) such acts are not expected from an A.G.M., if true.
iii. As indicated in Para 13 (page 14) of the Report, Sh. Bacchu Ram AGM instead of merely writing letter dt. 29.3.94 to Project Coordinator, Phuloni, should have visited Phuloni and investigated the matter, in person, and sent his findings/ recommendations immediately to the H.O. This shows lack of Co-ordination and proper liaisons at his end.
iv. Existing approval dated 17.1.94 by Shri A.K. Chaudhry, Ex-DGM Gauhati on a similar Note dated 11.1.94 (refer annex. 35-P) was not, in fact, asked for and seen by Shri Bachchu Ram, AGM on 7.2.94 while giving decision on Shri K.K. Kaul''s Minutes Note dated 2.2.94 (refer annex. 74 & 75-P)"
Significantly, in his tour report, Mr. M.R. Maurya also observed as under:-
"7. The Note dt. 2.2.94 of Sh. K.K. Kaul AE, was seen by Shri Bacchu Ram, AGM on 7.2.94 and his signatures on the same obtained. Here, there is MAJOR DIFFERENCE OF OPINIONS AND STANDS BEING TAKEN BETWEEN SH. BACCHU RAM, AGM & SHRI K.K. KAUL, AE. While Sh. Bacchu Ram, AGm (giving a copy of this Note) confirmed his disapproval, Sh. K.K. Kaul, AE, (by giving another copy of the same note) has proved that Post-Facto approval for the release of payments to the tune of Rs. 1,72,500/- only as made between 7.1.94 to 1.2.94 was obtained, at his end, from Sh. Bacchu Ram, AGM. Both these copies are placed at Annexures 74 & 75-P for perusal.
The documents, given to the undersigned, by Sh. Bacchu Ram, ZM, Gawahati in support of his stand that he had never approved or consented for release of firewood payments to Sh. Kang Rangbi from Feb. ''94 onwards and those, by Sh. K.K. Kaul, AE that post-facto approval dt 7.2.94 against release of Rs. 1,72,500/- (made from 7.1.94 to 1.2.94) were obtained by him from Sh. Bacchu Ram, ZM Gauhati are placed below at Annex. 53-P to 63-P at "O" and 75-P & 35-P respectively.
A look at these documents indicates that to prove their innocence in the eyes of Management, some additional description have been made on them just to veil-up their hasty decisions and unwarranted actions including ignorance/lack of earlier analysis and, as such, ascertaining facts, financial liabilities and wastages etc."
The above tour report contradicts the findings of the IO. On the basis of the said tour report the benefit of doubt ought to have been given to the Petitioner. The finding of the IO on this important aspect was not based on any acceptable evidence. This was a critical aspect of the entire inquiry. The explanation by the Petitioner that his superior Mr. Singson, AM was the one responsible for placing orders has in fact been accepted by the IO. Clearly, the Petitioner was also not responsible for negotiating the rates. Therefore, the finding of guilt returned by the IO as regards charge No. 5 is un-understandable. The DA does not appear to have examined the above aspect of the matter. He simply accepted the findings of the IO. The Petitioner''s grievances have not been appreciated either by the DA or by the Board of Directors while deciding the Petitioner''s appeal. This is a case where the findings of the IO are wholly perverse and contrary to the documents on record.
There was no finding by the IO of any financial loss caused to the TRIFED by the Petitioner. The alleged loss of Rs. 1,20,300/- stated to have been caused by and therefore recoverable from the Petitioner was not quantified in the chargesheet. It did not form the subject matter of the inquiry. Therefore, no such punishment could have been awarded.
Consequently, this Court has no hesitation in concluding that the impugned order dated 17th April 1996 of the DA is unsustainable in law. It is hereby set aside. The consequential impugned order dated 12th/14th November 1996 of the Appellate Authority is also hereby set aside.
The Petitioner has, during the pendency of the writ petition, been promoted to the post of Deputy Manager with effect from May 2005. The consequential orders on the basis of the present order of this Court be passed by TRIFED within a period of four weeks from today. The Petitioner be restored with all the consequential benefits within a period of four weeks thereafter. The writ petition is allowed in the above terms, with costs of Rs. 5,000/- which will be paid by the Respondent to the Petitioner within a period of four weeks.