Full Judgment Text
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CASE NO.:
Appeal (civil) 3071 of 2004
PETITIONER:
M/s. Maharashtra State Seeds Corpn. Ltd
RESPONDENT:
Haridas & Anr
DATE OF JUDGMENT: 24/02/2006
BENCH:
S.B.Sinha & Dalveer Bhandari
JUDGMENT:
J U D G M E N T
S.B. Sinha, J.
The appellant herein is a company incorporated and registered under
the Companies Act, 1956. It deals in production and supply of seeds to the
farmers. The respondent herein was appointed as an Assistant Field Officer.
While he was working at Nanded, misconducts committed by him came to
the notice of his superior officer. A preliminary enquiry was conducted
thereabout whereafter a charge sheet was issued to him. A disciplinary
proceeding was thereafter initiated against him.
The Enquiry Officer held:
"(1) It is proved that Shri H.D. Jadhao AFO has
violated the instructions of D.M. Nanded for
distribution of F/seeds on credit to the eligible seed
growers of Deglur and Mukhed He is also
responsible for non recovery of outstanding
amount of Rs. 19,938.50 from the seed growers
towards cost of F/seeds, Inspection fees &
Application fees etc. out of this amont Shri
Gorthekar is responsible for non deposition of Rs.
2675/- as per his undertaking & hence Shri Jadhao
stands responsible for non recovery of net amount
of Rs. 17,263.59.
For the amount of Rs. 2437/- towards shortage of
F/seed Shri Jadhao as well as Shri Gorthekar
stands responsible.
(2) Shri Jadhao cannot be held responsible totally
for late submission of record since the persons
involved in distribution of F/seeds etc. was
absconding & hence some time was required to
collect the information from the seed growers.
Also the charge of non recovery of outstanding
amount of Rs. 35,190/- from the seed growers in
absence of the record cannot be proved.
(3) It cannot be proved that the amount paid to Shri
Jadhao by the seed growers or their representatives
has not deposited by him. However, it is
concluded that the entire mesh has been created on
account of negligence on the part of Shri Jadhao.
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(4) It is proved beyond doubt that an amount of Rs.
26104/- collected from the seed growers have been
misappropriated by Shri Jadhao.
(5) Since the 22 bags of Hy. Cotton DCH-32 have
been traced out the charge of misappropriation of
this stock by Shri Jadhao cannot be proved.
(6) It is also concluded that Shri Jadhao proceeded
on leave without prior permission of the superior
from time to time. Similarly he has not attended
the weekly meetings called by D.M. without
satisfactory reasons. As a result he was not aware
about the instructions given by the D.M. from time
to time."
The Enquiry Officer, in his report, thus, found him guilty of
commission of the following misconducts : (1) He violated the instructions
issued by the District Magistrate, Nanded. (2) He misappropriated a huge
amount of the Corporation. (3) He remained on leave without prior approval
of leave and failed to attend the meetings.
It is not in dispute that the Enquiry Officer recommended
punishment of the Respondent for commission of the said misconducts in the
following terms:
"(1) An amount of Rs. 17,263.50 should be
recovered from Shri Jadhao is suitable instalments
along with interest.
(2) It is also proposed to recover interest on an
amount of Rs. 26,104/- for the period from 18.6.91
to 17.9.91.
(3) 50% cost of shortages in foundation seed i.e.
Rs. 1219/- should also be recovered from Shri
Jadhao.
(4) Two increments should be barred permanently.
(5) Warning letter may be issued to Shri Jadhao to
be punctual in attending corporation’s work in
future not to leave H.Q. without prior permission
of the superior and follow all the instructions
scrupulously henceforth failing which stern action
will be taken against him.
(6) It is further proposed that an amount of Rs.
2675/- as well as Rs. 1218/- towards 50% costs of
shortages in foundation seeds should be recovered
from Shri Gorthekar."
The Managing Director of the appellant company on or about
27.1.1994 issued a show cause notice as to why two increments of pay from
his salary should not be directed to be with held permanently. The 1st
respondent filed his show cause thereto. However, another second show
cause notice in supercession of the earlier notice, was issued on 21.3.1994
by the Managing Director of the appellant company on the ground that the
charges which were proved against the 1st respondent being serious in nature
and having regard to the gravity thereof, why the punishments specified
therein should not be imposed, stating :
"(4) - After scrutinising the documents again I
have come to the conclusion that the punishment
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of freezing two increments is very mild.
Therefore, I am cancelling previous Notice No.
Mahabeej/Admn.,94/10893 dated 2.2.94 and I
have decided that Shri Hariprasad Drupadrao
Jadhav, Asst. Area Officer is a person not worth
keeping in the service. And therefore, the
undersigned has imposed dismissal from service
on him. Similarly, due to your misappropriation
the Corporation has a loss of Rs. 15234/- which is
proposed to be recovered from you. The
Corporation has reserved its right to recover the
said amount from you through civil suit. Also the
Corporation has reserved its right to file criminal
case against you for the misappropriation of
Corporation funds.
(5) - Shri Hariprasad Drupadrao Jadhav is given an
opportunity through this memorandum to formally
submit his reply to the proposal of disciplinary
action to be taken against him. However, such
formal reply can be made based on the evidence
submitted by him during the departmental enquiry.
Any formal reply against the proposed disciplinary
action desired by him should be in writing which
can be considered by the undersigned. The formal
reply should reach the undersigned within fifteen
days from receipt of this memorandum."
The respondent filed his show cause in furtherance of the said notice.
Upon consideration of the said show cause the services of the 1st respondent
was terminated by an order dated 27.9.1994. He questioned the legality of
the said order by filing a writ petition before the Aurangabad Bench of the
Bombay High Court, which was marked as WP No. 1343/95.
The High Court in the impugned judgment noticed that he committed
the following misconduct:
"(i) The petitioner distributed seeds on credit to
those who were not eligible.
(ii) The amount collected from seed growers
towards cost of foundation seed names, whereas
the same was deposited late i.e. 17.9.1989.
(iii) The petitioner prepared false documents for
despatching of 21 bags and had misappropriated
22 bags of DCH 32 cotton seed.
(iv) The petitioner remained absent for weekly
meeting.
(v) The petitioner was negligent in writing
foundation seed delivery register in time, whereas
shortages amounting to Rs. 2437/- were noticed."
By reason of the impugned judgment although the High Court held
that the disciplinary proceedings had been held in accordance with law,
interfered with the quantum of punishment directing his reinstatement with
continuity in service and full back wages opined that ’withholding of two
increments of pay permanently’ should be imposed on him. The Division
Bench of the High Court assigned the following reasons in support of its
order:
(i) Two show cause notices, on the quantum of punishment could not
have been issued;
(ii) The Managing Director of the appellant company should have
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followed the rules and procedure laid down in the manual of
Departmental Enquiries and in relation thereto relied on Rule 42 of
the said manual which is as under:
"No order imposing on an employee
any of the penalties shall be passed by
the competent authority without the
charge or charges being
communicated to him in writing and
without his having been given
reasonable opportunity of defending
himself against such charges or
charges and/or showing cause against
the action proposed to be taken
against him. Procedure laid down in
manual of Departmental Enquiries of
Govt. of Maharashtra will be referred
and the same shall be made
applicable."
It was observed that if the Disciplinary Authority intended to differ
with the Enquiry Officer, it was incumbent upon him to assign specific
reasons therefore and the Disciplinary Authority could not thus change his
mind and to take different views at different times.
It was held:
"It has come on record that amount of defalcation
of Rs. 17,263.50 was to be recovered from the
petitioner by way of punishment. It has also come
on record that, in the meantime, respondents did
file civil suit for recovery of the said amount from
the petitioner. The matter was amicably settled
between the parties and the respondents, thereafter,
and, to that extent, the matter was compromised
between the parties, out of the court. Taking into
consideration all the circumstances appearing in
this case, in their sequence, it appears that, the
punishment of withholding two increments of pay,
permanently, as proposed in the show cause notice
(Exh E), is just and proper. Therefore, we are of
the opinion that, such punishment, which was
proposed by the enquiry officer, of withholding
two increments of pay, permanently, should be
accepted and confirmed."
Mr. Uday Kumar Sagar, learned counsel appearing on behalf of the
appellant in assailing the judgment of the High Court submitted that the
High Court was not justified in setting aside the second show cause notice
on the ground that the same was not provided for under the rules although no
embargo in this behalf was to be found. In any event, it was urged, the High
Court was not correct in directing back wages without appreciating the
totality of the facts and circumstances of the case.
Mr. Uday B. Dube, learned counsel appearing on behalf of the
respondent, on the other hand, contended that the issuance of second show
cause was illegal. The learned counsel further submitted that the Enquiry
Officer committed an error in holding the respondent guilty of the charge of
defalcation. It was furthermore brought to our notice that pursuant to the
interim order of this Court dated 6.5.2004, 1/4th of the salary had already
been paid to the 1st respondent and, thus, the same may not be directed to be
recovered.
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The High Court in its impugned judgment opined that the correctness
of the report could not be doubted. Having held so, as noticed hereinbefore,
it proceeded to interfere with the quantum of punishment on the premise that
the second show cause notice was illegal.
It has not been shown to us, despite repeated query made in this behalf
as to whether under the statutory rules, the Enquiry Officer was empowered
to make any recommendation to the Disciplinary Authority as regard
quantum of punishment to be imposed upon a delinquent employee. The
High Court has noticed that the disciplinary proceedings are governed by the
Manual of Departmental Enquiries. However, no provision therein has been
pointed out to show that the Enquiry Officer was statutorily or otherwise
empowered to make recommendations as regards quantum of punishment.
Reference to Rule 42 of the said manual by the High court was wholly
irrelevant as indisputably the procedures laid down therein for holding
departmental enquiry had been complied with. It is not the case of the 1st
respondent either before the High Court or before us that no charge was
framed and communicated to him and he has not been given an opportunity
to show cause against the action proposed to be taken against him. He
admittedly participated in the departmental enquiry. It is also not his case
that in the said departmental proceedings principles of natural justice had not
been complied with.
The charges levelled against the 1st respondent were serious in nature.
He has been found guilty of grave misconduct including defalcation of huge
amount, preparation of false documents as also misappropriation of 22 bags
of DCH 32 cotton seeds. It has also been proved that he has violated
instructions for distribution of seeds apart from remaining absent from work.
It is not a case, with respect to the High Court, where the disciplinary
authority had differed with the findings of the Enquiry Officer. The question
of differing with the findings of the Enquiry Officer by the disciplinary
authority would arise only when the delinquent officer is exonerated either
wholly or in part of the charges levelled against him whereas the disciplinary
authority forms a different opinion. Most of the charges have been found
proved and the Disciplinary Authority to that extent did not differ with the
report of the Enquiry Officer. So far as the quantum of punishment
proposed by the Enquiry Officer is concerned, if in terms of the rules, he had
no authority to do so, the Managing Director was entitled to apply his own
mind and could come to a conclusion as regard the quantum of punishment
which should be imposed on the delinquent officer. He in that view of the
matter was not obligated to assign any far less sufficient and cogent reason
as it was not the requirement of law. In any view of the matter, from the
second notice dated 22.3.1994 issued by the Managing Director of the
Corporation it is evident that sufficient and cogent reasons have been
assigned therein.
A departmental proceeding stricto sensu is not a judicial proceeding.
There is nothing in the rules to show that the disciplinary authority
cannot consider the materials on record with a view to form an independent
opinion as regard quantum of punishment to be imposed upon the delinquent
employee. He might have committed a mistake in issuing the first show
cause notice but by reason thereof he cannot be held to be wholly precluded
from issuing the second show cause notice as thereby he intended to rectify
the mistake committed by him.
In Indian Council of Agricultural Research and Another v. T.K.
Suryanarayan and Others [(1997) 6 SCC 766] a promotion granted by a
mistake in ignorance of the service rules was held to be capable of being
rectified stating:
"\005Incorrect promotion either given erroneously
by the Department by misreading the said Service
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Rules or such promotion given pursuant to judicial
orders contrary to Service Rules cannot be a
ground to claim erroneous promotion by
perpetrating infringement of statutory service
rules. In a court of law, employees cannot be
permitted to contend that the Service Rules made
effective on 1-10-1975 should not be adhered to
because in some cases erroneous promotions had
been given\005"
In Poothundu Plantations Pvt. Ltd. v. Agricultural Income Tax
Officer, Chittoor, Kerala State and others [(1996) 9 SCC 499], it was stated:
"4. There can be no doubt that only an apparent
error of fact or law can be rectified by an officer. If
the mistake of law has to be established by
construing the words of a section to find its proper
meaning, then such an error cannot normally be a
rectifiable error under Section 36. If two views are
possible, then obviously the error will not be an
error apparent from the record."
As the Enquiry Officer had no jurisdiction to recommend any
punishment to be imposed on the respondent by the disciplinary authority,
he although acted thereupon at the first instance, could have corrected his
mistake as the same was apparent on the face of the record. He, therefore,
did not commit any illegality in issuing the second show cause notice as
Enquiry Officer had no jurisdiction in that behalf. See M.Ahammedkutty
Haji V. Tahsildar, Kozhikode, Kerala & Ors. [(2005) 3 SCC 351]. Mistake
furthermore, may either be of law or fact. By reason of mistake on the part
of the Enquiry Officer, the respondent could not have been inflicted with a
minor penalty although he deserved a major penalty. If in law the quantum
of punishment to be imposed upon a delinquent officer is within the
exclusive domain of the disciplinary authority, unless otherwise delegated to
any other authority, he alone could exercise the said jurisdiction and
determine the same having regard the nature and guilty of the misconduct on
the part of the delinquent officer as the Enquiry Officer or any other
authority had no jurisdiction in relation thereto. The matter might have been
different if prior to the imposition of penalty of dismissal from service
against the 1st respondent, no opportunity of hearing had been given to him.
Admittedly the second show cause notice was issued to him and he showed
cause. It is also not contended that the order passed by the disciplinary
authority suffers from the vice of non-application of mind. The principles of
natural justice admittedly have been complied with.
The High Court proceeded on the basis that in absence of the specific
provision the second show cause notice was impermissible. It failed to
consider that there was no statutory interdict in this behalf. An
administrative order can be recalled. A mistake can be rectified. The
Managing Director of the Corporation as a disciplinary authority, it has not
been shown to us, lacked inherent jurisdiction in relation thereto.
The 1st respondent held an office of trust. He distributed seeds to the
farmers. He collected a huge amount from them. He not only defalcated a
huge amount but also misappropriated some bags of seeds. It was in the
aforementioned situation improper for the High Court to interfere with the
quantum of punishment. It is now well settled that in a matter of
disciplinary proceedings the High Court exercises a limited power. [See
Govt. of A.P. & Ors. V. Mohad. Nasrullah Khan [ JT 2006 (2) SC 82], L. K.
Verma V. H.M.T. Ltd. & Anr. [JT 2006 (2) SC 99], Karnataka Bank Ltd. V.
A.L. Mohan Rao [(2006) 1 SCC 63] and Hombe Gowda Educational Trust
& Anr. V. Sate of Karnataka & Ors. [(2006) 1 SCC 430].
The grounds for judicial review are limited. In Damoh Panna Sagar
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Rural Regional Bank & anr. V. Munna Lal Jain [(2005) 10 SCC 84] this
Court held that when the High Court intends to interfere with the quantum of
punishment on the ground that the same is shockingly disproportionate, it
must record reasons for coming to such a conclusion.
For the reasons aforementioned, the impugned judgment cannot be
sustained which is set aside accordingly. The Appeal is allowed. However,
any amount paid to the 1st respondent pursuant to the order of this Court
may not be recovered.
In the facts and circumstances of the case, there shall be no order as to
costs.