V.C. Daga, J.
1. This petition is directed against the order dated 28-2-2002 passed by the Maharashtra Administrative Tribunal, Nagpur, Bench Nagpur in Transfer Application No. 1376 of 1992 (Original Writ Petition No. 2689 of 1990) whereby the petition/application filed by the petitioner came to be dismissed.
Factual Matrix:
2. The facts giving rise to the present petition in nutshell are that the petitioner was appointed as Junior Clerk on purely temporary basis vide order dated 22-7-1981 and came to be posted at Government godown, Yeotmal. He worked at Government godown, Yeotmal from July, 1981 to November, 1982.
3. The petitioner was served with the show cause notice dated 2-6-1983 wherein he was described as Godown-Keeper at Government godown, Yeotmal having worked during the period July, 1981 to November, 1982 as per office order dated 22-7-1981. The petitioner was charged with misconduct of having issued food-grains and edible oil in excess of quantity than mentioned in the permits and thus having caused loss to the tune of Rs. 24,829.67 allegedly by joining hands with fair price shop keepers.
4. The petitioner replied the said show cause notice vide his reply dated 13-7-1983. He denied all the allegations made against him.
5. The petitioner, thereafter was served with memorandum dated 9-8-1983 wherein six charges were levelled against him along with three others viz. (1) Shri D.M. Zade, (2) Shri Koche, and (3) Shri Borikar (G.M.).
6. The petitioner submitted his reply to the said memorandum reiterating therein that he was appointed as Junior Clerk and not as Godown Keeper. That the job of issuing food grains, edible oil on permits to the fair price shop used to be done by the Godown Manager including the job of receipts and despatches of the food grains to the other stations. That he was not given either oral or written order by his superiors to work as Godown-Keeper or to do any other work and as such question of disobedience did not arise. That Shri N. R. Borikar, Godown Manager having paid the amount of loss, he should be held responsible and not the petitioner-delinquent. That he used to maintain the register of accounts under the instructions of the Godown Manager and that the same used to be submitted to him. That all the entries made by him were checked by his superior officers from time to time.
7. The aforesaid reply did not find favour with the disciplinary authority with the result the Departmental Enquiry was ordered against the petitioner for investigation of the charges levelled against him styling him as Ex-godown keeper.
8. The Enquiry Officer conducted enquiry against him. He examined four witnesses including Mr. Borikar, Godown Manager. The Enquiry Officer submitted his report holding that charge Nos. (i), (iii) and (iv) were proved against the petitioner. The details of the charges levelled and proved against the petitioner are reproduced here-in-below:
(i) That Shri H.D. Mishra, Ex-Godown Keeper at Govt. Godown, Yeotmal while working at Govt. Godown, Yeotmal from July 81 to November 1982 was allotted specific duties of issue of food grains edible oil on permits to the F.P. Shopkeepers, receipts and despatches of food grains to another stations. But he failed to perform the same, properly. (iii) That he issued food grains and edible oil in excess, quantity than mentioned in the permits and thus caused loss to the Govt. to the tune of Rs. 24,839.67 (Rs. Twenty four thousand eight hundred and thirty nine and paise sixty seven) only.
(iv) That he failed to maintain correct accounts registers E, EI, L, N, N-3 as per instructions in the manual of Food Account at the Govt. Godown.
9. The petitioner was served with two show cause notices; one calling him to show cause; why he should not be removed from service; since the charges were proved against him and another as to why the amount of loss to the extent of Rs. 24,839.67 should not be recovered from him.
10. The petitioner filed his reply to both the show cause notices. He denied all the allegations made against him. He reiterated that he was appointed as Junior Clerk and that he was never posted as Godown Keeper. That he was never allotted any specific duty of Godown Keeper. That there was no distribution of work amongst co-employees at Govt. Godown, Yeotmal. He, therefore, could not be held responsible for the charges alleged to have been proved against him.
11. The reply submitted by him did not find favour with the Disciplinary Authority with the result, two orders were passed against the petitioner; one is dated 24-8-1984 directing recovery of Rs. 12,498.80 and another dated 17-9-1984 dismissing him from the service as Godown Keeper.
12. The petitioner preferred appeal to the Commissioner, Amravati which came to be dismissed by an order dated 30-8-1985. Not satisfied with the order dated 30-8-1985, the petitioner preferred further appeal to the respondent No. 3, the State of Maharashtra; which met with rejection by an order dated 17-11-1989.
13. Being aggrieved by the aforesaid orders, the petitioner had invoked writ jurisdiction of this Court under Articles 226 and 227 of the Constitution of India. However, with the establishment of the Administrative Tribunals to deal with the cases of the employees of the State Government, the said writ petition came to be transferred to the Maharashtra Administrative Tribunal, Bench at Nagpur and came to be renumbered as Transfer Application No. 1376 of 1983. The same was heard and rejected by the Tribunal by an order dated 28-8-2002.
14. Being aggrieved by the aforesaid order, the present writ petition is filed by the petitioner again under Articles 226 and 227 of the Constitution of India contending that the Departmental Enquiry held against him was against the principles of natural justice, and that he was never appointed as Godown Keeper at Government Godown at Yeotmal and that for the first time he was informed through the show cause notice dated 28-6-1983 that he was assigned duties of the Godown Keeper. In his submission, he was never assigned duties of the Godown Keeper either by oral or written orders.
15. On being noticed, the respondents appeared and filed their return to answer the allegations made in the petition contending therein that reappreciation of the evidence in the writ jurisdiction of this Court is not permissible. Since all the authorities below have examined the case of the petitioner, this Court should not interfere with the impugned order.
Submissions:
16. Mr. Thakur, learned Counsel appearing for the petitioner while challenging the action of the respondents and the order of the Tribunal, submits that the impugned order of dismissal dated 17-9-1984 is bad and unsustainable in law for the following reasons:
(i) That show Cause Notice dated 2-6-1983 issued to the Petitioner as Godown Keeper is illegal because by appointment order dated 22-7-1981 the petitioner was appointed as Junior Clerk in Yeotmal Godown as purely temporary employee;
(i) that the petitioner was never issued any order letter posting him as a Godown Keeper between July, 1981 and November, 1982;
(ii) that the petitioner was never allotted either orally or in writing duties of Godown Keeper;
(iii) that the petitioner was never made known of the duties as Godown Keeper, obviously because he was never appointed as a Godown Keeper.
(iv) that the petitioner worked as Godown Clerk at Govt, godown, Yeotmal from July to November, 1982 and not as Godown Keeper.
(v) that for the first time through show cause notice dated 22-6-1983 he was informed that during the above period he was working as Godown Keeper.
17. Mr. Thakur further submits that the charges levelled against the petitioner in the show cause notice dated 22-6-1983 were vague and lacking in material particulars. He urged that assuming but not admitting that the petitioner was Godown Keeper, the Show Cause Notice did not specify as to when and how much stock was handed over him for his custody and care. No handing over/taking over documents were referred to or given to the petitioner at any time during the course of enquiry. Mr. Thakur placed reliance on the Apex Court judgments in the case of Sureshchandra Chakravarty v. State of West Bengal : (1971)ILLJ293SC , Sawai Singh v. State of Rajasthan : (1986)IILLJ390SC , A. L. Kalra v. Project and Equipment Corporation of India : (1984)IILLJ186SC and State of U.P. v. Mohammad Sharif : (1982)IILLJ180SC in support of his submissions.
18. Mr. Thakur further urged that the Departmental Enquiry was conducted in the breach of principles of natural justice for the following reasons:
(i) that during the departmental enquiry the Collector advised the Department that accounts work of godown being of technical nature, an Officer conversant with such accounts should be appointed as Presenting Officer.
(ii) request dated 26-12-1983 made by the petitioner for engaging Advocate was rejected without any reason;
(iii) request dated 7-7-1984 made by the petitioner for supplying copies of depositions and permission to cross examine witnesses not considered.
(iv) no defence statement was recorded nor was the delinquent questioned or explained about the seriousness of the charges by the Enquiry Officer.
19. Mr. Thakur urged that post facto the petitioner was designated, for the first time, through show cause notice dated 22-6-1983 as Godown Keeper and has allegedly been found guilty of failing in duties which were never allotted to him nor the duties of Godown Keeper ever fell within the four corners of duties as Junior Clerk, the post to which he was appointed. He further urged that the findings recorded by the Enquiry Officer are perverse contending that though the Enquiry Officer noted the objection of the petitioner that the petitioner was appointed as Godown Clerk and not as Godown Keeper, however, this objection of the petitioner was decided by the Enquiry Officer in a perfunctory manner reading as under:
The strength of Yeotmal godown is one Godown Manager, one Godown Keeper and one Godown Clerk. PW Shri N.B. Borikar, who was working as Godown Manager, has stated in unequivocal terms that there was no distribution of work amongst the godown staff nor there was any written distribution memo. However, by convention, the delinquent (petitioner) as Godown Keeper was in charge of proper maintenance of stock registers and other account registers....
20. Mr. Thakur further submits that the Enquiry Officer while holding that there was excess issue of food grains and edible oil from the godown causing loss to the Government has recorded finding as under:
However, it need to be decided as to how far and to what extent the delinquent is responsible for the loss to the Government and for maintenance of false accounts.
The Godown Manager himself used to issue food grains etc. from the godown.
But Shri Borikar as Godown Manager cannot be absolved of the responsibility, since he was supposed to supervise the work of Godown Keeper and was personally responsible for correct account. As such, the delinquent and Godown Manager Shri Borikar should be held collectively responsible for the loss and each should make up 50% of the loss.
21. Mr. Thakur further submits that the Enquiry Officer totally ignored the reply of the petitioner dated 13-7-1983 wherein the petitioner had specifically contended that the entries were checked by the Godown Manager and signed by him and that it was not his duty to act as Godown Keeper since he was recruited and posted as Godown Clerk in the Government Godown at Yeotmal.
22. Mr. Thakur further raised a contention that the punishment is excessive and discriminative as such violative of Article 14 of the Constitution of India. In support of his submission he submits that though findings of the Enquiry Officer is to hold the Godown Manager Mr. Borikar and the petitioner collectively responsible for the misconducts proved, he has recommended removal of the petitioner from the Government service and recovery of Rs. 12,419.83; whereas neither recovery has been recommended against Mr. Borikar nor any action has been proposed against him. The action against Mr. Borikar was taken only when the Collector, Yeotmal addressed confidential letter to the Commissioner, Amravati expressing necessity to process the proposal of departmental enquiry against Mr. Borikar as early as possible. Ultimately, by order dated 30-10-1987 the Commissioner, Amravati Division, Amravati found Mr. Borikar guilty of all charges levelled against him and arrived at the figure of loss suffered by the Government at Rs. 15,080.65 as against Rs. 24,838.57. Since Mr. Borikar had retired from service, the recovery was ordered from his pension. Mr. Thakur submits one does not know as to what had happened to the Departmental Enquiry against other co-employees M/s Khode and Koche who were also working in the said godown at the relevant time.
23. Mr. Thakur in nutshell submits that the impugned action is unsustainable and the petitioner's order of dismissal including that of the Tribunal is liable to be quashed and set aside and the petitioner is liable to be reinstated in the service with full backwages since he is unemployed right from the date of his dismissal. In support of his submission to claim full back wages Mr. Thakur relied upon three-Judge Bench judgments of the Apex Court and placed heavy reliance on Hindustan Tin Works v. The Employees of Hindustan Tin Works Pvt. Ltd. : (1978)IILLJ474SC , Shambhu Nath Goyal v. Bank of Baroda : (1983)IILLJ415SC and Manorma Verma v. State of Bihar .
24. Per contra, learned Assistant Government Pleader appearing for the respondents reiterated the submissions as incorporated in the counter affidavit filed on record and submitted that the petitioner would not be entitled for back wages as the petitioner did not prove that he was unemployed from the date of dismissal till date. Learned A.G.P., in support of her submission has relied upon the judgments of the Apex Court in the case of Kendriya Vidyalaya Sangathan v. S.C. Sharma : (2005)IILLJ153SC , U.P. State Brassware Corporation Ltd. v. Udai Narain Pandey : (2006)ILLJ496SC and B.V. Education Society v. Vidya Devi 2006 (5) Mh.LJ. 124 and prayed for dismissal of the petition. Considerations:
25. Having heard the rival parties, this petition raises a question as to whether an employee can be charged for misconduct, if he commits certain mistakes or lapses while discharging duties of the higher post to which he has neither entitled to be appointed nor appointed or asked to work.
26. In the case at hand, the petitioner was never appointed as Godown Keeper. His appointment order dated 22-7-1981 placed on record shows that he was appointed as Junior Clerk on temporary basis in place of Mr. B. D. Bendnarkar, Junior Clerk who was posted at Government Godown, Yeotmal. No specific order directing him to work as Godown Keeper was ever issued to the petitioner, though in the recitals to the memo dated 22-6-1983 issued by the Collector, Yeotmal it was mentioned that the petitioner was working as Godown Keeper at Govt, godown, Yeotmal during the period of alleged lapses as per office order dated 22-7-1981. The office order dated 22-7-1981 nowhere mentions that he was to work as Godown Keeper. If this is so, the question would be, was it a duty of the petitioner to discharge the duties of the Godown Keeper and to maintain accounts and registers for which he was proceeded with Departmental Enquiry. The answer has to be in negative. Even in the second memo dated 18-11-1983 the petitioner could not have been charged for failure to maintain proper accounts and for causing alleged loss of the Government to the extent of Rs. 24,839.67; since he was not to work as a Godown Keeper.
27. Where misconduct when proved entails penal consequences, it is obligatory on the employer to specify and if necessary define it with precision and accuracy so that any ex post facto interpretation of some incident may not be camouflaged as misconduct. It is not necessary to dilate on this point in view of the judgment of the Apex Court in Glaxo Laboratories (I) Ltd. v. Presiding Officer, Labour Court, Meerut : (1984)ILLJ16SC wherein the Apex Court held that, 'everything which is required to be prescribed has to be prescribed with precision and no argument can be entertained that something not prescribed can yet be taken into account as varying what is prescribed. In short it cannot be left to the vagaries of management to say ex post facto that some acts of omission or communication nowhere found to be enumerated in the relevant standing order is nonetheless a misconduct not strictly falling within the enumerated misconduct in the relevant standing order but yet a misconduct for the purpose of imposing a penalty. Rule 4 styled as 'General' specifies a norm of behaviour but does not specify that its violation will constitute misconduct.'
28. Charge No. (i) levelled against the petitioner is that, he was allotted specific duties of issuing food grains, edible oil to the fair price shopkeepers. However, no material facts or particulars as to when he was allotted these duties have been mentioned either in the charge or in the statement of allegations. The petitioner has denied the allotment of such duties. Nowhere in the Departmental Enquiry any document showing allotment of such duties to the petitioner was produced nor any material was shown to us to demonstrate that these duties were entrusted or allotted to the petitioner.
29. The third charge which is said to have been proved against the petitioner wherein the petitioner was charged for causing loss to the Government to the tune of Rs. 24,839.67 for having issued excess quantity of food-grains and edible oil by joining hands with the fair price shop keepers. Perusal of the charge and statement of allegations framed in this behalf nowhere mention as to when and how much quantity of food grains and edible oil were entrusted to the petitioner, though it was necessary to find out item wise loss suffered by the Government. One fails to understand how one can calculate loss in absence of particulars of quantity of food grains and edible oil entrusted or put in the custody of the delinquent-employee. In order to find out the loss, initial entrustment has to be proved. No such material particulars either in the charge or in the statement of allegations are to be found.
30. The aforesaid two charges said to have been proved against the petitioner are absolutely vague. The charges in this case are so bare that it was not capable of being intelligently understood and was not sufficiently definite furnish material to the petitioner to defend himself. The whole object to furnish the statement of allegations is to give all the necessary particulars and details which would satisfy the requirements of giving a reasonable opportunity to put up defence. The petitioner rebutted the charges and on every stage brought it to the notice of the authorities that he was never appointed as Godown Keeper nor he was entrusted with the duties of the Godown Keeper.
31. One of the basic principle is that a reasonable and adequate opportunity for defending oneself. If a person is not told clearly and definitely what the allegations are on which charges preferred against him are founded, he cannot possibly, by projecting his own imagination, discover all the facts and circumstances that may be in the contemplation of the authorities to be established against him. We are of the considered opinion that the aforesaid two charges framed against the petitioner were absolutely vague for want of material facts and particulars and has caused substantial prejudice to the petitioner in defending his case.
32. So far as next fourth charge which is said to have been proved; wherein the petitioner was charged for having failed to maintain correct accounts and registers as per instructions given in the manual of 'Food Account' meant for Government godown. The charge is also vague. One does not know as to whether the manual of Food account was handed over to the petitioner or whether he was made aware the procedure of maintaining account as per the Food Account Manual. One does not know whether such manual was at least available in the Government godown at Yeotmal. The petitioner was appointed as Godown clerk on temporary basis. As a Clerk, he was not expected to go through the Manual because it was not his duty to maintain the accounts. It was a duty of the Godown Keeper. Neither he was appointed nor entrusted with the duties of the Godown Keeper. At no point of time the petitioner was put in-charge of godown nor he was ever asked to discharge duties of the Godown Keeper. He was never given manual, namely; 'Food Account Manual'. If that be so, how can one be charged for misconduct for not following the instructions given in the alleged Manual. In the circumstances, one has to reach to the conclusion that the charges were framed against the petitioner with specific intention to make him a scapegoat. Because, in the Government administration somebody has to be held responsible if the loss is detected. A person in the lowest rug or small fry is always available for sacrifice.
33. Having said so, let us turn to the report of the Enquiry Officer. The Enquiry report states that; 'it need to be decided as to how far and to what extent the delinquent is responsible for the loss to the Government and for maintenance of false accounts.' However, no definite finding with appreciation of evidence; followed by reasons in this regard are to be found in the report of the Enquiry Officer. The Enquiry Officer has proceeded on assumption that the delinquent was working as Godown Keeper, when he was not. The Enquiry Officer has not taken into account as to what was the stock of food-grains and edible oil in the Government Godown on the date when the petitioner was appointed, assuming that he was appointed as Godown Keeper for the sake of argument. One does not know whether there was a shortage prior to the date when petitioner was appointed or it has taken place thereafter. It was expected on the part of the Enquiry Officer to take into account this factor. Merely because some of the audit statements were prepared by the audit party and signatures of the petitioner were obtained would not dispensed with the necessity of proving the factual shortage or loss suffered by the Government. The Enquiry Officer though has stated that to what extent the delinquent was responsible for loss needs to be determined; however, no such determination in this behalf has been done by the Enquiry Officer. The Enquiry Officer went to the extent of recording a finding that Mr. Borikar, Godown Manager himself used to issue food-grains, edible oils etc, from the godown and that Shri Borikar cannot be absolved of the responsibility since he was supposed to supervise the work as Godown Keeper and therefore, Shri Borikar should be collectively held responsible for equal loss. Having said so, the Enquiry Officer proceeded to fix liability to the extent of 50% against the petitioner without taking into account that other two officers namely; S/Shri D.M. Zade and Koche were also working in the said godown at the relevant time. No whisper in this behalf is to be found in the Enquiry Report. On being asked, learned A.G.P. appearing for the State informed us that no enquiry was initiated against these two officers. This aspect has not been taken into account. The petitioner through second part of first charge was charged of having joined hands with the fair price shop keepers; however, no finding in this behalf was recorded by the Enquiry Officer though in concluding part of the report he has said that charge No. (i) framed against the petitioner has been proved.
34. What is referred to as the report of the inquiry which is minutely scanned in the preceding paragraphs; merely seems to be recapitulation of allegations and explanation furnished and nothing more. Nowhere the evidence has been discussed and circumstances brought on record are taken into consideration. Nowhere the absence of details and material particulars in the charges framed and the statement of allegations are considered by the Enquiry Officer. By what process the Enquiry Officer has reached to the conclusion or what evidence appealed to him is left to speculation. The reasons in support of the conclusion are conspicuous by their absence. The findings are the ipse dixit. The salient feature which flies into the face about the findings recorded by the Enquiry Officer, the order of the Commissioner, Amravati Division, Amravati and that of the appellate authorities is that none of them made a reasoned or speaking order and their conclusions are mere ipse dixit unsupported by any analysis of the evidence or reasons in support of the conclusion.
35. At this juncture, it will not be out of place to mention that, the respondent No. 3 last appellate authority, i.e. the State Government while recapitulating the facts introduced a mala fide intention on the part of the petitioner for not maintaining proper accounts, different registers and went to the extent of attributing motives to him for overwriting and scratching entries, especially, when no such charge was framed against the petitioner.
36. The order of the Divisional Commissioner rejecting appeal filed by the petitioner reveals that the findings are recorded in the last para of the order reading as 'I find that the departmental enquiry was properly held and the Collector has taken a decision to dismiss the appellant mainly on two grounds i.e. issue of excess stock, overwriting and corrections in the Government records.' and recorded finding that;'...Even though no specific work distribution was made in writing by the godown manager, the appellant was in practice in-charge of record keeping.' The appeal filed by the petitioner was a comprehensive appeal wherein the breach of principles of natural justice viz. refusal to permit representation through Advocate and refusal to give copies of depositions were highlighted but nowhere any discussion in this behalf in the order of the appellate authority is to be found.
37. Mr. Thakur, learned Counsel appearing for the petitioner, during the course of his submission, also highlighted breach of principles of natural justice relying on the letter of the Collector dated 7-11-1983 wherein the Collector, Yeotmal had observed that some of the charges framed against the delinquent with reference to the issue of food grains and other articles from the godown and the maintenance of godown accounts were technical in nature, as such Collector had suggested appointment of an officer from the Food Section as Presenting Officer to facilitate proper conduct of departmental enquiry. He further submits that if the charges levelled against the petitioner were of technical nature, then it was expected on the part of the Enquiry Officer to permit the delinquent petitioner to get himself represented through an Advocate.
38. Mr. Thakur further urged that if the maintenance of accounts and issuance of food-grains, edible oil etc. from the Government godown was a work of technical nature then one cannot expect a person of a lower rug, namely; godown clerk to discharge duties which were to be discharged by the godown keeper. Therefore, there was a lapse on the part of the higher authorities in not appointing the Godown Keeper and expecting the said work from the godown clerk - the petitioner herein without issuing any order in this behalf.
39. Mr. Thakur further urge that a request was made on 17-7-1984 by the petitioner for supplying copies of the deposition. But, no such copies were supplied. Neither the defence statement was recorded nor the charges were explained to the petitioner. There is no explanation coming from the respondents as to why the copies of deposition were not supplied to the petitioner in spite of specific demand. These lapses, in our considered view, constitute a breach of principles of natural justice.
40. The Apex Court in Surath Chandra Chakrabarty v. State of W.B. : (1971)ILLJ293SC has observed that; charges involving consequences of termination of service must be specific; though a departmental enquiry is not like a criminal trial as was noted by this Court in the case of State of A.P. v. S. Sree Rama Rao : (1964)IILLJ150SC and as such there is no such rule that an offence is not established unless it is proved beyond doubt. But in a departmental enquiry entailing consequences like loss of job which nowadays means loss of livelihood, there must be fair play in action; in respect of an order involving adverse or penal consequences against an employee, there must be investigations to the charges consistent with the requirement of the situation in accordance with the principles of natural justice insofar as these are applicable in a particular situation.
The application on those principles of natural justice must always be in conformity with the scheme of the Act and the subject matter of the case. It is not possible to lay down any rigid rules as to which principle of natural justice is to be applied. There is no such thing as technical natural justice. The requirements of natural justice depend upon the facts and circumstances of the case, the nature of the enquiry, the rules under which the tribunal is acting, the subject-matter to be dealt with and so on. Concept of fair play in action which is the basis of natural justice must depend upon the particular lis between the parties See K.L. Tripathi v.State Bank of India : (1984)ILLJ2SC . Rules and practices are constantly developing to ensure fairness in the making of decisions, which affect people in their daily lives and livelihood. Without such fairness democratic governments cannot exist. Beyond all rules and procedures that is the sine qua non.
41. Mr. Thakur has also urged that the petitioner was discriminated and unfair treatment was extended to the petitioner. He pointed out that along with the petitioner three more persons were charged for the alleged lapses noticed by the respondents in the working of the Government godown. Those three persons were; S/shri D. M. Zade, Kolhe and Borikar (Godown Manager). No action was taken against Mr. Zade and Kolhe, whereas no action was taken against Shri Borikar, Godown Manager till the matter was taken up by the Collector with the Commissioner, Amravati Division, Amravati. It appears from Annexure 'G' that Shri N.R. Borikar, ex-Godown Manager, Gr.-I was charge sheeted for 13 lapses as follows:
1) That the said Shri N.R. Borikar, ex-godown Manager Gr. I, Yeotmal has not carried out monthly physical verification of food grains in Govt. Godowns of all varieties since the date of his assuming the charge i.e. from 22-7-1981. He has not drawn monthly abstracts of stock registers and 'H' register.
2) That he failed to maintain the correct account of stocks in registers which are to be maintained by the Godown Manager. There are over writings, scoring and differences in the total of sales and balances in the registers. All with a view to misappropriate the food grains.
3) That he has bifurcated the stacks of food grains from one stack to another without obtaining prior permission from the proper authority.
4) That he has entered some permits of Palm Oil twice in the register and given wrong total without assigning any reason therefor which lead to incorrect maintenance of accounts.
5) That he has made several corrections in 'E' and 'H' registers. He has shown standard bags as understand bags in case of common rice and fine rice. He has effected corrections in the balance in stock several times.
6) That he failed to maintain correct accounts of R.B.D. Palm Oil.
7) That he failed to maintain 'F' and 'F-1' registers though it is his legitimate duty to maintain the same.
8) That he failed to maintain the labour charges bills well in time which ultimately resulted in agitations of labourers.
9) That he utterly failed to maintaining the accounts of gunny bags in register 'M' since December, 1981.
10) That he failed to carry out standardization internationally to misappropriate the Govt. foodgrains in spite of clear instructions contained in Manual of instructions to Godown keeper and Godown Manager in Govt. godowns. This is only to avoid checking and inspection of stocks just to the extent quantity involved in permits. He also failed to complete the standardisation of stocks.
11) That he has unauthorisedly issue rice, wheat and edible oil from Govt. godown to the F.P. Shopkeepers in excess quantity than mentioned in the permits and thus caused loss to the Govt. to the extent of Rs. 24,838.57 by joining hands with the F.P. Shopkeepers.
12) That he has increased the total of sales to the higher side than it was actually and thus he has misappropriated the differential quantity of foodgrains by creating false records.
13) That he has issued foodgrains occasionally from two stacks of the same variety which is against rules.
42. The Resident Deputy Collector was appointed as Enquiry Officer and District Supply Officer as Presenting Officer. The Enquiry Officer has submitted the report against Shri Borikar on 29-4-1987 wherein positive findings were recorded holding that all charges framed against him were proved. The Enquiry Officer quantified the exact amount of loss to the Government, which worked out in the sum of Rs. 15080.65 as against Rs. 24,838.57 mentioned in the charge-sheet. Based on this, the Enquiry Officer worked out the portion of loss to be recovered from Mr. Borikar in the sum of Rs. 7,540.30. In the final show cause notice, the punishment proposed was that of reversion from the post of Godown Manager to the post of F.G.C. and refixation of his pay as if he was never promoted as Naib Tahsildar. Shri Borikar accepted all findings of the Enquiry Officer and simply requested for a lenient view in the matter. Taking a lenient view in the matter, only balance amount of Rs. 1463.50 was ordered to be recovered from the Godown Manager since he had already paid Rs. 6076.80.
43. In the aforesaid backdrop, Mr. Thakur is justified in contending that the discriminatory treatment was given to the petitioner. The charges framed against Shri Borikar were grave and serious which were not disputed by him; whereas, the gravity of the charges levelled against the petitioner were not as serious as they were against Shri Borikar. In spite of this, the petitioner is inflicted with the punishment of dismissal; whereas the proposed punishment against Shri Borikar was that of reversion to a lower post. No action was taken against other two officers, viz. Mr. Zade and Mr. Kolhe though charges were framed against them. In our considered view, the punishment imposed on the petitioner is shockingly disproportionate and discriminatory and cannot stand to the scrutiny of law. The petitioner was temporarily posted as Junior Clerk without having any experience with respect to the work of the Godown Keeper. The post of Godown Keeper is a post of higher responsibility. The person of lower rug could not have been asked to discharge or execute the duties of the higher responsibility, especially, when he had no experience and, that too, when he was not appointed to that post. In the aforesaid circumstances, the impugned action of punishment and the impugned order of all the authorities below are liable to be quashed and set aside and the petitioner is liable to be reinstated in service.
44. Having said so, a serious legal debate was raised by the rival Advocates with respect to the claim of backwages set up by the petitioner. Without entering into the niceties of the legal debate, we propose to refer to the recent judgment of the Supreme Court in the case of Allahabad Jal Sansthan v. Daya Shankar Rai and Anr. reported in : (2005)IILLJ847SC wherein the Apex Court after taking survey of the leading cases on the subject observed as under:
We have referred to certain decisions of this Court to highlight that earlier in the event of an order of dismissal being set aside, reinstatement with full backwages was the usual result. But now with the passage of time, it has come to be realised that industry is being compelled to pay the workman for a period during which he apparently contributed little or nothing at all, for a period that was spent unproductively, while the workman is being compelled to go back to a situation which prevailed many years ago when he was dismissed. It is necessary for us to develop a pragmatic approach to problems dogging industrial relations. However, no just solution can be offered but the golden mean may be arrived at.' In the above view of the matter, we are of the opinion that the interests of justice would be subserved if the petitioner is directed to be paid 50% of the back wages.
45. For the reasons aforesaid, petition is allowed to the extent mentioned hereinabove with costs quantified in the sum of Rs. 5000/-.