HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Special Appeal No. 444 of 2003. Food Corporation of India and others. .... Appellants/Respondents. Versus H.N. Srivastava. .... Respondent/Petitioner. ----------
Present:
(Hon. Mr. Justice Amitava Lala & Hon. Mr. Justice Ashok Srivastava) Appearance:
For the Appellants : Mr. Satya Prakash.
For the Respondent : Mr. Arvind Srivastava.
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Amitava Lala, J.-- This special appeal is arising out of the judgement and order dated 22nd April, 2003 passed by the learned Single Judge in Civil Misc. Writ Petition No. 33047 of 2002 (H.N. Srivastava Vs. Food Corporation of India and others), thereby allowing the writ petition in favour of the respondent-writ petitioner.
The main contention of the respondent-writ petitioner is that in spite of none of the charges as levelled against him having been proved before the enquiry officer except some irregularities in properly recording details on the concerned register and the stock stored at various places of depot, the disciplinary authority passed an order dated 21st May, 2002 reverting the respondent-writ petitioner from the post of AG-I to AG-II (D) and also imposed penalty to the tune of Rs.1,99,897/- on account of pecuniary loss. Such order of reversion was challenged by filing writ petition before the learned Single Judge, when upon hearing the parties the Court was pleased to allow the writ petition and quash the order dated 21st May, 2002 passed by the authority concerned. Such order of learned Single Judge dated 22nd April, 2003 is impugned in this appeal.
This appeal was preferred on 22nd May, 2003 and on 23rd May, 2003 upon hearing learned Counsel for the parties a Division Bench of this Court has stayed the operation of the order of learned Single Judge dated 22nd April, 2003 with a liberty to file an application for vacation, variation or extension of the order. Hence, the order of reversion was in operation. Respondent-writ petitioner was allowed to work as AG-II (D) for a period of four years. The tenure of four years was to expire in May, 2006. However, when the respondent-writ petitioner was working as AG-II (D), he was compulsorily retired in the year 2004 in another departmental proceeding vide order dated 26th October, 2004 arising out of selfsame incident. Neither he has challenged such order in any civil proceeding nor in the writ proceeding. Additionally, he has received his full retiral benefits i.e. leave encashment, gratuity, contributory provident fund, etc. after his retirement in 2004 itself. No dues are pending. However, the appellant Corporation has recovered amount of alleged loss i.e. Rs.1,99,897/- as penalty from the salary of the delinquent.
It appears to us that scope of dispute at this stage is limited to that extent in view of the facts that the respondent-writ petitioner continued in service as AG-II (D) pursuant to stay order of the Division Bench and has been subjected to compulsory retirement, which was given effect to with benefits.
We have gone through the records and found that though the charges are moulded but it appears that the orders of reversion and compulsory retirement are more or less arising out of the similar incident. In both the cases i.e. reversion and compulsory retirement, the article of charges are as follows:
Article of Charges in the case of reversion:
"ARTICLE NO. I:
He misappropriated 89 bags weighing 83-50-000 Qtls. wheat at Mandi Yard Gola from stock No. R/2/1. He caused financial loss of Rs.33,577/- (@ Rs.402/- per Qntl) in connivance with Shri Mohd. Ubaid, AG-II (D) for his personal gain.
ARTICLE NO. II:
He misappropriated 6409 bags = 6412.94.000 Qtls. wheat during 1-4-95 to 30-6-96 valuing Rs. 25,78,001.18 (@ Rs.402/- per Qtl.) in connivance with Shri Mohd. Ubaid, AG-II (D) for his personal gain.
ARTICLE NO. III:
He misappropriated about 228''A' class gunnies valuing Rs.4,560/- in connivance with Shri Mohd. Ubadi, Ex. AG-II (D) for his personal gain.
ARTICLE NO. IV:
He misappropriated 8316 B.T. ''A' class gunnies by showing false replacement at F.S.D. Gola valuing Rs.1,66,320/- in connivance with Shri Mohd. Ubadi, Ex. AG-II (D) for his personal gain.
ARTICLE NO. V:
He misappropriated 697 B.T. ''A' class gunnies by showing false replacement at Railhead Gola valuing Rs.13,940/- for his personal gain."
Article of Charges in the case of compulsory retirement:
"Article-I Shri H.N. Srivastava, misappropriated 6580 bags = 6248-77-000 qtls. wheat by issuing false acknowledgement and payment in connivance with Late Shri Mohd. Ubaid AG-II (D), Shri Swami Nath Shukla, AG-II (D), Shri A.K. Singh, AM (AC) Shri S.K. Shukla, TA-I, Shri M.A. Siddiqui, TA-I, Shri Raj Pal Verma, TA-III. He caused financial loss of Rs.31,86,872-70 paise to the Corporation for his personal gain.
Article-II Shri H.N. Srivastava, misappropriated 15394 bags SB = 7697-00-000 qtls wheat against FCI wheat Purchase Centre Gola in connivance with Purchase Point Staff, Handling Agent and Depot Staff of Mandi Yard Gola. He caused financial loss of Rs.52,95,536/- to the Food Corporation of India for his personal gain.
Article-III He misappropriated 900 bags = 055-00-000 qtls. wheat by taking less opening balance in quarterly PV of 30-6-98 in connivance with Late Shri Mohd. Ubaid, AG-II (D) & Shri S.N. Shukla, and thereby caused financial loss of Rs.5,88,240-00 for his personal gain.
Article-IV During Rabi procurement season 1998-99 Shri H.N. Srivastava, AM (D) managed acceptance of short weight bags of wheat at Mandi Yard Gola and issued acknowledgement for quantity as mentioned in movement challans in connivance with S/Shri Late Shri Mohd. Ubaid, AG-II (D), Rajender Kumar, AG-II (D), Mohd. Abrar Khan, AG-III (D). He also got accepted wheat stocks in old gunnies against new gunnies. He got stored wheat stocks without weightment and caused storage loss of 18749-15-300 qtls and thereby caused financial loss of Rs.1,28,99,415-00 for his personal gain.
Article-V He misappropriated 6 truck load of wheat received from wheat purchase centre Rehaia, the thereby caused financial loss of Rs.5,84,800-00 to the Food Corporation of India, for his personal gain.
Article-VI He did not distribute the depot work properly amongst the Asstt. Gr-I (Depot) and Asstt. Gr-II at FSD, Gola. He allotted maximum of work of depot to late Shri Mohd. Abaid, AG-II (D), while other depot staff like Shri K.B. Lal, AG-I (D), P.K. Shukla, AG-II (D) and two other AG-II (D) were posted at Gola.
Article-VII Shri H.N. Srivastava, AM (D) allowed to store wheat stocks at Kachcha and low lying ground at Mandi Yard Gola without making proper arrangement of polythene covers, proper dunnage, ropes and drainage system in Mandi Yard Gola. He did not divert the stocks to rake loading point Bisan inspite of order from DM (Q.C.) Shri B.L. Kureel. He allowed storage of wheat stock on Kachcha, low lying land, which caused damages to the wheat stocks to the tune of 4637-63-00 qtls valuing Rs.31,86,800/- The FCI suffered from loss of Rs.31,86,800/- due to his wrong and malafide decision.
Article-VIII Shri H.N. Srivastava, AM (D) issued fictitious work slips to the HTC of 1,04,938 bags SBT wheat against which work was not done by HTC. Shri R.C. Gupta, as the said stocks were received from Wheat Purchase Centre Gola on book balance. He embezzled about Rs.15,000/- in connivance with S/Shri Late Shri Mohd. Abaid, AG-II (D) and R.C. Gupta, HTC for his personal gain."
It is contended by the learned Counsel appearing for the appellant that so far as the order of compulsory retirement is concerned, the same is not subject matter of the writ petition and there is a provision of appeal from such order. It is open to the respondent-writ petitioner to prefer appeal or not, particularly when he has accepted the order of compulsory retirement with all financial benefits.
So far as the case of reversion is concerned, the enquiry officer held that delinquent is not guilty of charges of Article Nos. 2, 3 and 5 but charges of Article Nos. 1 and 4 and that too in a limited manner i.e. carelessness of the delinquent officer. Inference drawn by the enquiry officer with regard to Article No. 1 is as follows:
"1) The AM (D) Shri H.N. Srivastava has verified 1548 bags in stack No. R/2/1 in the quarterly P.V. Report 31-3-95 and 30-6-95; whereas Shri Mohd. Qumar, AM (PV) has verified 1459 bags as per his P.V. Report 2/A P.V.
2) The difference of 89 bags have been noticed in both the documents.
3) The C.O. has pointed out that AM (PV) has conducted the verification on 25-9-95 after the gap of six months from 31-3-95.
4) He has further stated that R/2/1 was stacked on the road side and 1548 bags were stacked in that stack. In the first week of Sept. some bags were fallen out due to jerk of truck passing through the road side. These bags were fallen out and could not be stacked in the same stack as such these 89 bags were kept adjacent to stack No. M/4/2, M/4/5 and M/4/9.
5) The AM (PV) has verified 1349 bags in stack No. M/4/2, 1331 in M/4/5 and 1297 in M/4/9 against the Book Balance of 1296. No doubt that this difference comes of 89 bags and made up of stack No. R/2/1.
6) This plea of C.O. can not be agreed because he should have given a remark in his report that these bags have been fallen down and stacked nearby other stacks. No doubt there is no difference but the lapse on the part of C.O. can not be ruled out.
7) He should have directed during his visit to Unit I/C Shri Mohd. Ubaid and Rajeshwar Singh Depot I/c to account for these bags against these stacks or make a remark in the stackwise register but he failed to issue the instructions during his visit to FSD Gola.
8) As regards showing the quantity of 147 MT in R/2/1 in the M.T.R. for the months of April' 95, July' 95 and Aug.'95 by AM (QC) also do not fill up the gap because generally the AM (QC) do not physically verify the stocks and take the figures as mentioned by the depot and it might have happened the same in this case.
9) It is true that total stock position has been tallied by Sh. Mohd. Quamar with the Master Ledger of FCI Gola for the month of Sept.'95 and no difference was noticed.
10) Not only the C.O. is responsible for these 89 bags being a supervisory Officer, Shri Rajeshwar Singh, Depot I/c is wholly and personally responsible in addition to the custodian. The custodian Shri Mohd. Ubaid has already expired as such no need to comment but Shri Rajeshwar Singh is liable for answering these lapses.
11) The C.O. has verified 1569 bags in R/6, R/11 and R/12 when there is no bag as per stackwise register. 1708 bags in M/2/15 and 1296 bags in M/2/16 and there was no stock. He has also verified 1569 bags in R/4/6 against 383, 1296 in M/3/5 against 562, 1296 bags against M/3/9 against 720. It proves that he has not carefully carried out the job."
With regard to charge of Article No. IV, important part of the inference of the enquiry officer is as follows:
"4) No doubt, Shri Rajeshwar Singh, as Shri Mohd. Ubaid has died, is answerable for this negligency on his part.
5) As per Exb.D-3, 1-15-000, 0-72-000, 0-52-000 jute twine has been purchased and consumed at Gola during 95-96, for stitching of the replaced gunnies.
6) The position given by AM (A/Cs)/ (Compilation), Distt. Office, the investigation is incorrect when he has given a certificate for purchase of jute twine and already adjusted by him vide J.E. No. 260/5, 385/10, 233/2.
7) Rs. 79,064/- has been paid as per Exb.D-4 to casual labourers for replacement of gunny at Gola during 95-96 and this amount has already been adjusted vide J.E. No. 385/3, 385/10 and 235/2.
8) It proves that the replacement has been during the operation at Gola and gunnies have not been misappropriated except these have not been entered on day-to-day basis, for which AG-I(D) is responsible and it also reflects on the part of Supervisory Officer."
However, the disciplinary authority by its order of punishment dated 21/22nd May, 2002 not only reverted the delinquent but also imposed penalty of recovery of Rs.1,99,897/- in spite of accepting and appreciating the assessment of the enquiry officer in a judicious manner. The relevant portion of such order of disciplinary authority is quoted below:
"I have gone through the contents of the charge sheet, the inquiry report and reply submitted by the C.O. on the findings of Inquiry Officer along with other relevant materials on record in a careful manner. I observe that the I.O. has assessed all the documentary evidences and witnesses linked with the article I & IV in a judicious manner, which establishes complicity and lack of supervision of C.O. in misappropriation of 89 bags of wheat at Mandi Yard Gola and misappropriation of 8316 BT ''A' class gunnies by showing false replacement at FSD Gola resulting into pecuniary loss of Rs.33577/- and Rs.166,320 respectively to the Corporation. Moreover in regard to articles II, III & V which have not been proved by the I.O. on some technical ground I am of the opinion that the C.O. can't absolve himself from the guilt of his supervisory lapses on the basis of varion please taken by him in his reply.
Taking into account aforesaid facts and observation, I infer that the C.O. is definitely responsible for the charges levelled against him about his complicity which led to loss of said amount to the Corporation and for such misconduct on his part he deserves a penalty to meet the end of justice.
Now, therefore, I Kush Verma, Zonal Manager (N) in exercise of the powers conferred under Regulation 56 of FCI (Staff) Regulation 1971 hereby impose the penalty of recovery of Rs.1,99,897 (Rupees one lac ninety nine thousand eight hundred ninety seven) and reversion to the post of AG II (D) for a preiod of 4 years upon said Shri H.N. Srivastava, now AG-I (D) with immediate effect."
Such order was set aside by the learned Single Judge, but the Division Bench while entertaining the special appeal at the initial stage passed an order of stay, and as a result whereof the delinquent officer continued in service in the reverted post being AG-II (D) till his compulsory retirement subsequent thereto. At the time of coming to conclusion, the learned Single Judge passed the following order:
"In view of the analysis made above, it is clear that on the facts and finding so given by the enquiry officer, the petitioner was never found to be guilty of misappropriation causing pecuniary loss to the Corporation, rather slight negligence in discharge of duty was found but the disciplinary authority by not properly noticing the finding of the enquiry officer, without assigning any reason in respect to the reply submitted by the petitioner and even by accepting the charges in respect to item no. 2, 3 and 5 which have not been found to be proved against the petitioner and for which, he was never given any opportunity, the impugned decision has been taken. Thus the impugned order is vitiated in law, entitling the petitioner to get relief from this Court.
For the reasons recorded above, this writ petition succeeds and is allowed. The impugned order passed by the respondent no. 2 (annexure 5 to the writ petition) dated 21.5.2002 is hereby quashed."
We have gone through the order passed by the learned Single Judge on 22nd April, 2003, impugned in this appeal, and the order of the disciplinary authority along with the report of the enquiry officer. We agree with the fact that there is no reflection in the report of the enquiry officer that there was any pecuniary loss. On the contrary it was held that there was lapse or negligence on the part of the delinquent officer in respect of both the charges i.e. Article Nos. 1 and 4. Against this background, we are of the view that either disciplinary authority will accept the report of the enquiry officer in toto or he will disagree and upon service of second show cause and obtaining reply pass a fresh order with reasons giving opportunity of hearing. In this case, the disciplinary authority has accepted the report in one hand by saying that the enquiry officer has assessed all the documentary evidences and witnesses in a judicious manner particularly in respect of the Article Nos. I and IV, but on the other hand, imposed the penalty of Rs.1,99,897/- under Regulation 56 of the Food Corporation of India (Staff) Regulation, 1971. Both the stands are self contradictory in nature. Therefore, it is a clear case of disagreement with the report of the enquiry officer, without affording any opportunity of hearing. Consequently, imposition of penalty of recovery of Rs.1,99,897/- without any pecuniary loss to the appellant-Corporation is colourable exercise of power. That apart, the respondent- writ petitioner has suffered two punishments; (i) reversion, and (ii) compulsory retirement. Even thereafter imposition of penalty for a sum of Rs. 1,99,897/- without any pecuniary loss, as established before the enquiry officer and as accepted by the disciplinary authority as judicious, is not only harsh but disproportionate in nature.
It is to be remembered that principle of unjust enrichment is not required to be looked from the angle of fiscal disputes but from the angle of other disputes like a dispute between master and servant, who is not in equal bargaining position with the other, particularly when the Government or governmental bodies claim to be model employer.
In further, rights and duties are occupying two distinct places. Definitely one can be required to be punished for just cause but not for unjust cause. It is also to be seen from the social point of view. Due to commercial or economical globalization, we can not forget the preamble of the Constitution. This is the case where imposition of penalty is absolutely unjusticiable on the part of the appellant and as such, the amount of penalty, which has been recovered by the appellant from the respondent-writ petitioner, is required to be returned to the respondent-writ petitioner within a period of one month from this date, failing which it will carry simple interest @ 6% per annum till the date of actual payment.
Accordingly, the special appeal is disposed of, however, without imposing any cost. Interim order, if any, is merged with the final order.
(Justice Amitava Lala) I agree.
(Justice Ashok Srivastava) Dated: 07th April, 2011.
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Hon'ble Amitava Lala, J.
Hon'ble Ashok Srivastava, J.
The special appeal is disposed of, however, without imposing any cost.
Dt./-07.04.2011 SKT/-
For judgement and order, see order of the date passed on the separate sheets (nine pages).
Dt./-07.04.2011.
SKT/-