HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Judgment reserved on 18.2.2011
Judgment delivered on 18.3.2011
CIVIL MISC. WRIT PETITION NO.216 OF 2011
Kamal Nayan Singh vs State of U.P. and others
Hon'ble Sunil Ambwani, J.
Hon'ble Naheed Ara Moonis, J.
1. Heard Shri Umesh Narain Sharma, learned counsel for the petitioner. The State is represented by the Standing Counsel.
2. The petitioner was serving as Regional Food Officer/Incharge District Supply Officer, Gorakhpur. He has been placed under suspension by the Commissioner, Food and Civil Supplies, U.P. Lucknow by the order dated 8.12.2010, giving rise to this writ petition, for quashing the suspension order and for a writ of mandamus not to give effect to the suspension order, received by the petitioner on 12.12.2010.
3. The substance of allegations against the petitioner, on which he has been suspended, are that in between April, 2009 to April, 2010 the State Government allocated 3240 kilo litres of kerosene oil to District Gorakhpur, in addition to the allocations already made for the district. The petitioner, instead of distributing the kerosene oil in all the seven Tehsils, allotted the additional quota only in four Tehsils. He made allocations only to four whole sale dealers as against 16 in the district. The kerosene oil was distributed without verifying the previous distribution; the arrivals in the stocks of the whole sale dealers; and in making allocations to the whole sale dealers of oil companies beyond their storage capacity, thereby misusing the allocation and in not keeping effective control over the subordinate staff of his office, committing gross irregularities in discharging his duties.
4. On the first hearing of the writ petition, the suspension order was challenged on the ground that no notice or opportunity was given to the petitioner. He had not committed any misconduct and irregularity in distribution of additional quota of kerosene oil, and was not involved in the fact finding enquiry, which was completed on 20.7.2010, whereas the order of suspension was passed five months' later on 8.12.2010. It was submitted that no charge sheet has been served upon the petitioner, nor any follow up action has been taken and thus the order virtually amounts to punishment.
5. Shri Umesh Narain Sharma and Shri B.D. Mandhyan appearing for the petitioner thereafter justified the distribution. They submit that the distribution was made strictly in accordance with the demand and particularly in those Tehsils, which were affected by the floods. The additional allocation was made by the State Government to be supplied by only a few oil companies of which the whole sellers were allotted the quota for distribution.
6. A supplementary affidavit was filed on 4.2.2011 alleging that in pursuance to the letter issued by the Commissioner, Food and Civil Supplies dated 8.12.2010, the District Magistrate, Gorakhpur issued the letters on 14.12.2010 and 16.12.2010 to Sub Divisional Magistrates of all the seven Tehsils out of which the Sub Divisional Magistrates of Tehsils Sadar; Chauri Chaura; Sahjanwa; and Campairganj informed by their letters dated 27.12.2010, 28.12.2010, 30.12.2010 and 30.12.2010 that there were no irregularities regarding disbursement of the additional kerosene oil, and on the basis of these reports, the District Magistrate, Gorakhpur by his letter dated 5.1.2011 informed the Commissioner, Food and Civil Supplies not to initiate any departmental action taken in the matter, against the concerned employees.
7. Shri Sharma submits that the District Magistrate, Gorakhpur by his letter dated 09.4.2009 had informed the Principal Secretary, Food & Civil Supplies, that the regular monthly quota of district Gorakhpur is 2736 kilo litre. According to the instructions issued by the State Government the non-LPG card holders are entitled to 05 litres of kerosene oil and LPG card holders are entitled to 03 litres kerosene oil per month on every card; there are 890475 ration cards in the district out of which 235475 are LPG ration cards. On the standard fixed by the State Government, a total of 3981 kilo litres of kerosene oil was required in the district, whereas only 2736 kero litres kerosene oil was allocated for the month. The district was affected by the rostering of the electricity on account of which there was increased demand from the consumers. The District Magistrate requested that the quota of the district should be increased from 2736 kilo litres to 3981 kilo litres kerosene oil and that for the month of April, 2009 at least 400 kilo litres of additional kerosene oil be allocated. A similar letter was sent on 23.6.2009 to the Under Secretary, Food and Civil Supplies Department, Government of U.P. Lucknow, for allocating at least 600 kilo litres kerosene oil for June, 2009. The District Magistrate repeated the demands for the months of June, July, August, September, October, December, 2009 and January, February, March & April, 2010 for additional allocation of at least 600, 450, 600, 400, 450, 600, 600, 600, 550, & 500 kilo litres kerosene oil respectively.
8. The allocations made to the various districts from April, 2009 to January, 2010 collectively annexed to rejoinder affidavit, as Annexure-RA-2 shows that the district Gorakhpur was allocated additional quota of 156 kilo litres kerosene oil for April, 2009; 288 kilo litres for May, 2009; 228 kilo litres for July, 2009; 60 kilo litres for July, 2009; 254 kilo litres for September, 2009; 204 kilo litres for October, 2009; 216 kilo litres for December, 2009 and 228 kilo litres for January, 2010 respectively.
9. The petitioner has relied upon the letters of Sub Divisional Magistrate, Sadar dated 24.4.2009 and 10.7.2009 for allocation of 80 kilo litres and 60 kilo litres of additional kerosene oil in view of the geographical position of the villages in the district. For July, October, and December, 2009 the Sub Divisional Magistrate, Campairganj repeated the demand for additional quota of 100 kilo litres of kerosene oil. The Sub Divisional Magistrate also repeated the demand of at least 100 kilo litres of kerosene oil in addition to normal allocation for August, and December, 2009. The petitioner has referred to the letters of Sub Divisional Magistrate, Campairganj for additional demand of 80 kilo litres for January, March and April, 2010 and the letters of the Sub Divisional Magistrate, Gola dated 12.1.2009 surrendering 42 kilo litres of kerosene oil. It is submitted that the allocation was made for the areas for which the demand was raised, and that in some areas the additional quota was surrendered.
10. Learned Standing Counsel has filed counter affidavit of Shri Vijay Shanker Pandey, the present District Supply Officer, Allahabad. He has raised the issues regarding the non-verification of supplies made to some whole sale kerosene dealers and the allocation beyond their storage capacity. In paragraphs 8, 10 and 11 of the counter affidavit, it is stated that out of seven Tehsils, 19 blocks and 07 town areas, in which 16 whole sale kerosene oil dealers are operating, (09 of IOC, 03 of BPC, 01 of IBPC and 03 of HPC), only 04 whole sale dealers were allocated additional kerosene oil for which no reasons were given by the petitioner. The arrivals of 24000 litres on 4.4.2009; 12000 litres on 5.4.2009; 12000 litres on 10.7.2009 and 6000 litres on 16.6.2009 in the stocks of M/s Eastern U.P. Traders, Kushnahi Bazar was not verified by the petitioner. The storage verification in some cases was done beyond the storage capacity of the dealers. The Special Enquiry Team inspected the relevant records and the arrivals of 84000 litres kerosene oil. M/s Eastern U.P. Traders, Kushnahi Bazar-authorized dealer of BPC had storage capacity of only 4000 litres, whereas the arrivals of 84000 litres were verified in his stocks which included the quantities detailed as above. In some cases a verification was made of the arrivals of kerosene oil of huge quantities of same day, namely on 27.11.2009 and 26.12.2009, contrary to the procedure of unloading of kerosene oil in the Government Orders dated 2.6.2008 and 24.12.2008. Similarly M/s Jalan Enterprises, Kolia- authorized dealer of BPC also received 6000 litres of kerosene oil on 27.12.2009 while the sale of the dealer on 27.11.2009 was found to be nil and only 1116 litres kerosene oil was left in the storage.
11. In paras 14 and 16 of the counter affidavit, it is stated that the petitioner was given full opportunity to give his explanation in the preliminary enquiry.
12. In reply Shri Vijay Shanker Pandey, District Supply Officer, Allahabad has stated in supplementary counter affidavit that the District Magistrate had raised the demand of additional kerosene oil from April, 2009 to April, 2010 for the entire district on the ground that the entire district was affected by the rostering of electricity supply. There was great resentment among the public due to non-supply of adequate kerosene oil. The Special Enquiry Team constituted by the Food Commissioner found that the additional kerosene oil was not distributed equally in the entire district. It was confined only to four Tehsils. The petitioner was given an opportunity to explain to the Special Enquiry Team whether he had informed all the concerned Sub Divisional Magistrate about the additional allocation of kerosene oil.
13. From the aforesaid facts, we find that the petitioner, as incharge of the distribution of kerosene oil in the district, had prima facie failed to carry out his responsibilities. There was a great demand of kerosene oil (a heavily subsidised essential commodity) in the entire district. The District Magistrate did not confine the demand into any particular area. It was for the petitioner to have taken adequate and sufficient measures for equal distribution of the additional quota in all the 07 Tehsils, including 19 blocks; and 07 town areas in the district. The petitioner appears to be satisfied with some letters received from some Sub Divisional Magistrates with regard to the sufficiency of the distribution and allocated the quota 04 out of 16 dealers which was in turn distributed in only 04 Tehsils.
14. The distribution of essential commodities through Public Distribution Scheme is made to various categories of consumers. The State Government has fixed separate quotas of the kerosene oil for the card holders, who have LPC connection, and those, who do not have LPG connection. On account of rostering of electricity, floods and severe winters, the distribution was required to be made equally to all the card holders in accordance with their entitlement. The submissions made by Shri U.N. Sharma, that if the distribution of additional quota was made in the entire district, each card holder would have got only a few mili litres of kerosene oil in addition to the normal quota and consequent distribution only in a part of district, overlooks the object of the distribution of the scheduled commodities through the Public Distribution System. It is not the question of small quantity but of equal distribution of subsidised scheduled commodities to be made by the officers, who are made responsible for it. The petitioner has not given any good reasons on record in the writ petition, challenging the suspension order to justify the distribution only in a few Tehsils, and through a few whole sale dealers only. He will also have to explain in the departmental enquiry as to why he did not verify the arrivals of stocks with the whole sale dealers and stocks were allowed in their account beyond their storage capacity.
15. The suspension order is based upon the allegations, without making any enquiry. A special enquiry team had verified the arrivals and distribution and had given opportunity to the petitioner to explain the unequal distribution of the kerosene oil in the district. It is only after the special enquiry team reported the irregularities that the petitioner has been placed under suspension.
16. We are not impressed by the argument, that under the proviso to Rule 4 of the UP Government Servants (Punishment and Appeal) Rules, 1999, the allegations, even if established, will not attract major penalty. Prima facie the allegations of misconduct in the suspension order, do not suggest that on their proof a major penalty cannot be given to the petitioner.
17. The judicial review of suspension order is permissible in the cases where any statutory conditions or limitation in exercise of the powers to suspend an employee, has been violated, or where the suspension is by way of substantive penalty without following the principles of natural justice. An order of suspension may also be challenged on the ground of malafides. Where the suspension is pending departmental enquiry as in the present case, it does not involve punishment. It only means temporary deprivation of the functions or the right to discharge his duties. It was not necessary to make a detailed enquiry, into the allegations of alleged misconduct, or to obtain the explanation of the employee before making such order. If the charges do not appear to be groundless, the discretion of the disciplinary authority to place the government servant under suspension does not admit a strict judicial review. These principles, on which an order of suspension can be subjected to challenge, have been settled in Ghous Mohd vs. State of Andhra Pradesh AIR 1957 SC 246; Khem Chand vs. Union of India AIR 1963 SC 687; Pratap Singh vs. State of Punjab AIR 1964 SC 72; State of Haryana vs. Hari Ram Yadav AIR 1994 SC 1262; Union of India vs. Udai Narain (1998) 5 SCC 535.
18. The petitioner has not made out any good ground to challenge the suspension order. The petitioner as incharge District Supply Officer, was responsible for equal and equitable distribution of additional quota of kerosene oil in the district and to maintain the supplies for all the eligible citizen holding ration cards for entitlement of such distribution. Prima facie the allegations are not of such nature on which the powers of suspension could not be invoked. No other point was pressed.
19. The writ petition is dismissed.
Dt.18.3.2011 RKP/