Santosh Kumar vs Union Of India And 6 Ors.
2021 Latest Caselaw 4530 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 33
 

 
Case :- WRIT - A No. - 55296 of 2016
 

 
Petitioner :- Santosh Kumar
 
Respondent :- Union Of India And 6 Ors.
 
Counsel for Petitioner :- P.K. Upadhyay,Sandeep Tiwari
 
Counsel for Respondent :- A.S.G.I.,R.K.Jaiswal,Raj Kumar Singh
 

 
Hon'ble Ashwani Kumar Mishra,J.

This petition is directed against an order dated 30.09.2016, passed by the General Manager, Food Corporation of India, Regional Office, Lucknow, whereby recovery to the tune of Rs.2 lac has been directed to be made from the petitioner on account of losses caused to the Corporation.

Admitted facts that emerge on record are that petitioner at the relevant point of time was posted as Manager (D) at FSD, Manduadih, Varanasi. A charge sheet was served upon him on 31.03.2016 as per which three rake of 42 wagons arrived at the depot and ultimately a shortage to the tune of Rs.21,32,242/- has been found to have been caused to the Corporation. It has been observed that in case petitioner had followed the instructions laid down by the Corporation such losses could have been avoided. A sum of Rs.2 lac therefore was proposed to be recovered from the petitioner. Reply to the charge sheet has been given denying the charges levelled against the petitioner. It has specifically been asserted that one Sudhir Kumar Srivastava, Manager (Depot) supervised the working of unloading and weighment of all the rakes alongwith ICCS officer squad and petitioner at no stage had supervised the weighment or receiving of wheat and that no pecuniary loss has been caused to the Corporation on account of any inaction on part of the petitioner. This explanation, however, has not been accepted and order impugned has been passed. Thus aggrieved, petitioner is before this Court.

Learned counsel for the petitioner submits that service conditions of petitioner are governed by the Food Corporation of India (Staff) Regulations, 1971 (hereinafter referred to as 'Regulations, 1971'), which provides for discipline and appeal regulations in section 5 of the Statutory Regulations. Recovery from his pay of the whole or part of any pecuniary loss caused by the employee to the Corporation by negligence or breach of orders is one of the minor penalty provided in regulation 54. Regulation 54(iii) of the Regulations, 1971 reads as under:-

"54. Penalties:

Notwithstanding anything contained in any other regulation, and without prejudice to such action to which an employee may become liable under any other regulation or law for the time being in force, the following penalties may (for good and sufficient reasons and as hereinafter provided) be imposed on any employee of the Corporation.

Minor Penalities:

(i) .........

(ii) ........

(iii) recovery from; his pay of the whole or part of any pecuniary loss caused by him to the Corporation by negligence or breach of orders;"

The procedure for imposing minor penalties have also been specified in regulation 60. Regulation 60(1)(b) of the Regulations, 1971 are relied upon, which reads as under:-

"60. Procedure for imposing minor penalties:

(1) Subject to the provisions of sub-regulation (3) of Regulation 59, no order imposing on an employee any of the penalties specified in clauses (i) to (iv) of Regulation 54 shall be made except after :

(a) .............

(b) holding an inquiry in the manner laid down in Sub-regulation (3) to (23) of Regulation 58, in every case in which the disciplinary authority is of the opinion that such inquiry is necessary."

Learned counsel for the petitioner further submits that order impugned is arbitrary as the only ground for which punishment is imposed upon the petitioner is that responsible person has retired.

Petition is opposed by the respondents.

I have heard Sri P. K. Upadhyaya, learned counsel for the petitioner, Sri R. K. Singh, learned counsel for the respondents and have perused the materials brought on record.

The specific assertion of petitioner in the reply was that three rakes were unloaded and weighment etc. was undertaken by the then Manager (Depot), Sudhir Kumar Srivastava. This defence of the petitioner has been discarded on the ground that Sudhir Kumar Srivastava has already retired. Merely because relevant person responsible for causing losses to the Corporation has retired would not mean that punishment for the charges can impose upon higher authority. Regulation 54(iii) of the Regulations, 1971 permits recovery to be made for whole or part of any pecuniary losses caused by the employee to the Corporation by negligence or breach of orders. There is no finding in the order impugned about any negligence on part of the petitioner or breach of orders which has led to pecuniary losses being caused to the Corporation.

In order to justify an order of recovery the disciplinary authority will have to specifically hold the employee liable only to the extent of negligence or breach of orders. Lack of supervision cannot be a ground, urged by the respondents, to impose punishment unless it is specifically disclosed that the employee concerned was under an obligation to supervise unloading of rakes or get its weighed etc. Such operations were performed by Sudhir Kumar Srivastava, Manager (Depot), who has already retired. Even otherwise, the procedure which is stipulated in regulation 60(1)(b) of the Regulations, 1971, has not been followed, inasmuch as no enquiry etc. in the manner specified therein has been conducted.

This Court in Writ Petition No.12027 of 2016 (Gauri Shankar Tiwari vs. Union of India and others), decided on 10.05.2016, has taken note of the statutory regulations to observe as under:-

"Learned counsel for the respondent submits that Regulation-58 deal with the imposition of major penalty, whereas, it is only Regulation-60, which deals with procedure for grant of minor punishment, and according to the learned counsel, sub-clauses (3) to (23) of Clause-58 shall not apply in respect of minor punishment. This argument advanced on behalf of the respondents, cannot be accepted in view of the plain reading of the Regulation itself. Once the provisions of Clauses 3 to 23 of the Regulations-58 have been adopted and made applicable by virtue of Clause 60(1)(b) then this provision shall apply in respect of proceedings undertaken for minor punishment as well, if the disciplinary authority is of the opinion that such inquiry is necessary.

By virtue of the aforesaid clause, provisions of clause-58(3) to 58(23) gets attracted if the disciplinary authority is of the opinion that such inquiry is necessary in respect of proceedings under taken for imposing minor penalties also. It is contended by the petitioner that no such procedure, as contemplated in Regulation 58(3) to 58(23), has been followed and the order is otherwise, bad in law."

In view of the aforesaid discussions this Court finds that the punishment imposed upon the petitioner of recovery is not sustainable as the same is in teeth of the statutory regulations.

Learned counsel for the respondents has placed reliance upon DHBVNL Vidyut Nagar, Hisar and others vs. Yashvir Singh Gulia, (2013) 11 SCC 173 and it is stated that minor penalty can be inflicted without holding full-fledged enquiry against the employee concerned. The judgment of the Supreme Court in the above case was delivered in the context of different set of rules applicable upon the employees of Haryana Electricity Board in which there existed separate and distinct procedure for inflicting minor and major penalties. There was no stipulation in the regulations that detailed enquiry would be warranted before imposing minor punishment as is stipulated in the Regulations, 1971. Judgment of the Supreme Court, therefore, is clearly distinguishable on facts.

Consequently, writ petition succeeds and is allowed. Order dated 30.09.2016 is quashed.

No order as to costs.

Order Date :- 24.3.2021

Ashok Kr.