IMPORTANT POINT
The court emphasized the necessity of procedural fairness and the requirement of a factual basis for disciplinary actions, particularly when exonerating evidence exists.

JUDGMENT :

SUMAN SHYAM, J.

1. Heard Mr. D. Bora, learned counsel appearing in this case in place of Mr. M.K. Choudhury, learned Sr. counsel, who has argued the matter with the permission of this Court. Also heard Ms. B. Devi, learned counsel appearing in place of Mr. S.P. Choudhury, learned CGC for all the respondents.

2. By filing this writ petition, the petitioner has questioned the legality and validity of the order dated 19-09-2014 issued by the Director General, Border Roads (DGBR), i.e. respondent No. 2 herein imposing the penalty of Rs. 1,84,907/- upon the petitioner on the ground of alleged misappropriation of Government Stores. The writ petitioner has also assailed the memorandum dated 14-01-2015, containing article of charges, served upon him with a view to initiate a departmental proceeding against the petitioner on the ground stated in the writ petition. From the facts projected in the writ petition, it appears that the basic case of the writ petitioner is that the allegation of misappropriation of Government Stores is based on the assumption of deliberate manipulation and tampering of records by GS No. 188295W Store Supervisor Roshan Kumar, facilitating such irregular activities. However, in a separate Court of Inquiry held against Roshan Kumar, the allegation of record tampering has been found to be baseless inasmuch as the Enquiry had come to a conclusion that it was an error of “omission” and not an error of “commission” and has exonerated Roshan Kumar. The contention of the writ petitioner is that since Roshan Kumar has been found to be innocent and considering the fact that the allegation of record tampering has been found to be baseless in a Court of Inquiry held against Roshan Kumar, there was no justifiable ground, either to make any recovery from the writ petitioner or to initiate any departmental proceeding against him since, the allegation brought against the writ petitioner would be wholly un-sustainable without the complicity of Roshan Kumar.

3. The writ petitioner herein, who was serving as Sr. Store Supervisor of 94 RCC GREF at the relevant point of time, i.e. during the period from 08-08-2011 to 01-12-2011, claims that he did not have any role to play in any kind of misappropriation in the store leading to shortage of Government supply nor is there any finding of fact recorded against him to such effect in any Enquiry. Notwithstanding the same, the respondents have not only passed an order of recovery of an amount of Rs. 1,84,907/- from the writ petitioner but has also proposed to initiate a departmental proceeding against him under Rule 14 of CCS(CCA) Rules, 1965 on the same allegation, thus, causing serious prejudice to the interest of the writ petitioner.

4. In support of the case projected in the writ petition, Mr. Bora has argued that the entire proceeding of the Court of Inquiry (C of I) leading to issuance of the order dated 19-09-2014 was totally flawed inasmuch as, the provisions of the relevant rules and the principles of natural justice have been given a compete go by. Mr. Bora submits that during the Court of Inquiry, his client has not been granted proper opportunity to defend his interest by cross-examining the witnesses. Moreover, due to the presence of Sr. officers during the Court of Inquiry, the proceeding itself was heavily influenced against the petitioner, much to the detriment of his interest.

5. It is also the submission of Mr. Bora that although, as per the relevant rules, the Chief Engineer (Project) was the disciplinary authority of the petitioner, yet, the order of penalty dated 19-09-2014 has been issued by the Director General of Border Roads (DGBR) who is the appellate authority. He submits that since the original order of penalty dated 19-09-2014 was issued by the respondent No. 2 (DGBR), hence, the appeal preferred by the petitioner before the appellate authority, i.e. DGBR, was not considered, thus, causing serious prejudice to the interest of the petitioner.

6. By referri