M.P. Sharma vs Food Corporation Of India & Or
2012 Latest Caselaw 3428 Del

$~42
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%            Judgment delivered on: 22nd May, 2012

+            W.P.(C) No.2398/2000

      M.P. SHARMA                                              ..... Petitioner
                              Through : Mr.V. Shekhar, Senior Advocate with
                              Ms.Deepakshi & Ms.Shaveta, Advs.

                     versus

      FOOD CORPORATION OF INDIA & OR         ..... Respondents
                  Through : Ms.Anju Bhattacharya & Mr.Elgin Matt
                  John, Advs


CORAM:
HON'BLE MR. JUSTICE SURESH KAIT


SURESH KAIT, J. (Oral)

CM No.6896/2004

In view of the order passed by this Court on 02.05.2012, instant application renders infructuous.

CM stands disposed of.

+ W.P.(C) 2398/2000

1. The instant petition is being filed while challenging the impugned orders dated 12.08.1998 and 14.01.2000 passed by the disciplinary authority and the appellate authority respectively whereby the penalty was imposed

upon the petitioner as under:-

"Now, therefore, the undersigned, in exercise of powers conferred under Regulation 56 read with Regulation 54 & 62 of the FCI (Staff) Regulations, 1971 imposes a penalty of reduction in rank from Assistant Grade - I (D) to Assistant Grade - II (D) upon the said Shri M.P. Sharma with the further directions to fix his pay at the lowest stage of pay applicable for the post of Assistant Grade-II. It is further ordered that the period of suspension be treated as not on duty."

2. The facts of the case are that on 06.11.1994 a circular was issued by the respondent / FCI containing the instructions to store the food grain (Paddy) on account of interference by the District Manager, the instructions were seldom forwarded. To the said decision, there were protests from the FCI employees in regard to the above circular since storing of the food grains in the manner was contrary to the earlier instructions. On 26.04.1996, the foodgrain belonging to the respondent was stored by the millers in Safidon (Haryana). At the relevant time, the petitioner was working as Assistant Grade-I (d)with FCI.

3. Mr.V.Shekhar, learned Senior Advocate appearing on behalf of petitioner submitted that the petitioner objected to the storing of the food grains in the factory premises of the millers as it was out of the bound of FCI staff. Despite protest, the FCI management, at the instance of managerial staff entered into an agreement on 06.05.1996 with the millers to store the grains. The terms and conditions of the aforesaid agreement as contained in para No.2 were as under:-

"a) xxx xxx xxx

b) Stocks will be under the joint custody of FCI & the miller. However, if felt necessary there will be no objection from the party for keeping the paddy under FCI staff.

c) xxx xxx

d) Once paddy stored in the mill premises, the miller will be responsible for its quality and quantity. If he has so desires he may associate himself at the time of receipt in mandi, railway station / FCI depot etc. to satisfy himself about the quantity and quality.

e) If cuatim milling is awarded to the party in whose mill premises the paddy stock is stored, the party will start milling of paddy immediately after executing of agreement and will complete the same within stipulated period as described by FCI on FCX milling stores, terms and conditions effective".

4. Learned counsel submitted that the millers lifted the food grain without the permission of the FCI or its staff. When he came to know, same was reported by the petitioner on 16.06.1996.

5. Pursuant to the said report, vigilance squad visited the mill on 19.06.1996 and found the stocks were not proper.

6. Learned counsel pointed out that instead of appreciating the steps taken by the petitioner for providing prompt information, the authority issued charge memo against him along with some other staff officers and the department proceeded against all of them in a common proceeding, though the nature of duties of each officers were not the same.

7. He submitted that the defence of the petitioner was that he submitted the summary of paddy shortage in mill premises on 19.06.1996 as per PV and noticed shorted due to unauthorise lifting of FCI paddy bags (Ex.1) in respect of all the six rice mills of Safidon. Accordingly, the matter was reported to the Assistant Manager (D), Safidon vide his letter mentioned above Ex.56(ii) (TR).

8. Further, the petitioner has taken the stand that the paddy was not in his custody as per Sr. No.11, of the agreement, wherein, it has been mentioned that the paddy will remain in joint custody of FCI and millers; the clause 1(b) of the agreement executed with M/s Jain Rice Mills on 06.05.1996 had the same arrangement also. The clause 1(d) of the agreement states that, once the paddy stored in the mills premises, the miller will be responsible for its quality and quantity. If he so desires he may associate himself at the time of receipt in Mandi, Railway Station / FCI depot etc to satisfy himself about the quality and quantity. It is indicated in para No.3 that the ward and watch arrangements were made through private security agency in respect of all the centers but the Safidon where security guard cannot be posted on the directions of the Court, the security payment of Safidon was being through the millers concerned. Therefore, even the security guard was of the confidence of the millers and not of the FCI or the petitioner.

9. It is further submitted that the petitioner was not the part of the said agreement. On the contrary, he protested not to be entered in such type of arrangement, which was totally unsafe.

10. Learned counsel further submitted that the disciplinary authority on

receiving the report from the inquiry officer awarded three punishments viz.

(i) Reduction in rank from Assistant Grade - I (D) to Assistant Grade - II (D); (ii) To fix his pay at the lowest stage of pay applicable for the post of Assistant Grade-II; & (iii) The period of suspension be treated as not on duty.

11. Being aggrieved, the petitioner filed the appeal before the appellate authority, which was rejected. However, the suspension period was directed to be treated as leave of the kind as admissible, under rules.

12. Learned counsel further submitted that on perusal of the appellate authority order would show that the appellate authority agreed with most of the contentions of the petitioner; the same is reproduced as under:-

"1. It is true that as per the orders of the SRM, Haryana/ District Manager, the paddy for the crop year 95-96 was stored in Millers premises inspite of the protests from the concerned staff vide telegram dated 21.10.1995. The defence also produced a statement showing the availability of vacant storage space.

2. The contention is not factually correct. SRM, Haryana letter dated 19.03.1996 addressed to the DM had clearly mentioned that the FCI should ensure that an independent premises with separate enclosures/ entry point with watchman Qtr are provided and the premises are storage worthy. In any case, it must be ensured that the paddy stored under proper conditions and pilferage, theft or misappropriation of paddy stocks is done by any one. Since, the FCI was also the joint custodian, it was for the Depot Staff to ensure implementation of the guidelines of the SRM, before storing the paddy in the mill

premises, for this purpose, the DM cannot be blamed.

3. It is a fact that the petitioner informed the Rice Miller about unauthorised lifting of paddy and the same was also endorsed to AM (D) Safidon for information and further necessary action. It is also correct that the Hqre. Squad did not undertake any physical verification of stocks.

4. It is factually correct that as per storage agreement, the miller was responsible for quality and quantity of the stocks although the stocks were under the joint custody of miller and FCI. As per record, the millers had admitted about the unauthorised lifting of paddy and availability of resultant rice within the mill premises which was offered to FCI.

5. It is not factually correct. Even if the miller had provided watch and ward staff, it was duty of the FCI staff to ensure safe storage of paddy stocks.

6. As per record, AM (D), Safidon had certified that the miller delivered the rice against unauthorised lifting of paddy. However, the remarks had been indicated by AG-I that the rice was dumped by the millers and the same was rejected by TAs as the same were not within the specifications. It may, however, be stated that as per the tour note of Shri C.D. Bhardwaj, the then Manager (Opn) ZO (N) that although rice millers have given undertaking that they were ready to deliver the resultant rice against the quantity of paddy lifted by them without issuance of release orders but unless FCI receives the rice as per specifications for the variety of paddy stored in the millers premises, there were shortage in the

paddy stocks. The Inquiry Officer in his report has also mentioned that even if the millers have delivered the rice as argued by the Cos, the offence of misappropriation of paddy does not get mitigated in any manner.

7. It is true that in the inspection report of Sh.C.D. Bhardwaj, Manager (Opn), ZO (North), it has been clearly indicated that the rice stocks were available with the millers against the unauthorised lifted paddy. Even though the rice stocks were available in the mill premises, it is amply clear that without issue of release order, the millers unauthorisedly lifted the paddy and milled at their own which was against the agreement."

13. However, the order passed by the appellate authority is without application of mind and to the ground reality and situations. The responsibility of the millers was there. As per the record, the millers had admitted about the unauthorised lifting of the paddy.

14. It is further submitted that the procedure adopted in the inquiry were in clear violation of principle of natural justice as the documents not part of the charge - memo were permitted and introduced by the Presenting Officer to substantiate the charge. The documents sought by the petitioner were not given not considered in the inquiry.

15. The common proceedings cause prejudices, since the guilty officers and innocent supporting officers were placed together depriving the chance for cross-examination, confronting through the action etc.

16. Learned counsel has pointed out there is perversity in the finding of the inquiry officer as the evidence available on record would absolve the

petitioner of any lapses which were alleged in the charge memo, but still the evidence was given to the contrary to the evidence available on record.

17. He further submitted that the order of the disciplinary authority is cryptic and not speaking order. It does not answer the defence of the petitioner and not to the basic reality that the petitioner was neither gained nor the FCI suffered any loss for which the petitioner was being charged.

18. It is further submitted that no negligence can be attributed to the petitioner. The paddy was stored at the instance of District Manager which was contrary to the circular and protested by the petitioner. The millers had full control over the stocks. The agreement had held the miller responsible for any shortage etc. The paddy was removed by the millers in the absence of the petitioner and without his knowledge and permission. It was not possible to exercise vigil on the shortage as his duty hours were limited from 10:00 AM to 05:00PM. If something happened thereafter, until and unless, contrary is proved, he cannot be held guilty for such type of charge.

19. He further submitted that there is no evidence at all against the petitioner that he connived with the millers while removing the stocks from the godown.

20. Mr.Shekher, learned counsel for petitioner has informed this Court that some of the co charged officers namely Kitab Singh, R.C. Saini, B. L. Lamba, Mehar Singh, & Tek Ram Sharma approached the High Court of Punjab and Haryana, vide CWP No.9903/2000 (O & M) whereupon vide order dated 22.03.2012 the impugned proceedings has been quashed and held as under:-

"5. In a case where the respondents were contending that the physical verification revealed that the stocks were not available and all the employees were contending that the stocks of paddy had already been milled even before the release orders, it was the duty of the Corporation that prosecuted a charge to bring evidence that the stocks of paddy or milled rice had been transported out of the mills and sold in the black market at Delhi. The loss to the Corporation could be only in a situation where the goods in joint custody had actually been lost. In this case, it has been brought out in evidence that the milled rice was actually supplied by the respective mill- owners to FCI and they had already been duly accounted for although subsequent in point of time. It is in evidence that the requisite stocks as milled rice had been delivered to the Food Corporation of India. This clearly vindicates stand of the petitioners that there had been no connivance of any of the employees with the mill- owners to cause loss to the Corporation.

6. The learned counsel for the respondents would contend that the stocks which had been entrusted with the mill-owners were not a few bags but they were thousands of bags, which were not accounted for at the time of physical verification. The learned counsel would further contend that at the time of physical verification, the petitioners could have shown that the stocks of paddy had actually been milled and kept inside and that there had been no loss. On the other hand, no such evidence was given by any of the employees. I would reject such an argument from the Corporation only because that it was duty of the respondent-Corporation to prove that the stocks had not been converted as rice but transported out to Delhi for sale in the black market. The shortage of stocks and the sale

at Delhi were part of the same transaction as enumerated in the charge. If the proof of such sale in the black market was not possible, although claimed to have been known to the Corporation through discrete inquiries and when there was also admission of the fact that the milled rice had been delivered to the Corporation and there had arisen no pecuniary loss, the inference has to be only that the charge against the petitioners had not been established.

7. It is no doubt true that the extent of judicial review in departmental proceedings cannot extend to treating the Court as a higher forum of Appeal. In this case, however, an extraordinary situation arises by the fact that the charge contained two components, which are a part of the same transaction, namely, one, of the shortage of stocks that had arisen by the alleged connivance of the employees with the mill-owners for a transport outside and two, sale of the stock in black market by the millers. If the ultimate loss had not been proved at all as a matter of same transaction, the first part of the charge of the shortfall alone cannot be taken as a comprehensive independent charge. It is a combination of the elements found in the chargesheet alone that would have made the petitioners liable. The finding of guilt by the respondents under circumstances is, therefore, without any basis and not established through any evidence. It was a case of complete lack of evidence and proof of what the petitioners were charged with.

8. The impugned proceedings are quashed and the respective punishment of reduction of scales of pay is also quashed. The petitioners shall consequently be paid all the arrears after providing for the increments that had been withdrawn and the

amounts shall be released to the petitioners within a period of 12 weeks with interest @ 6% per annum from the date when they fell due till the date of payment."

21. On the other hand, Ms.Anju Bhattacharya, learned counsel appearing on behalf of respondents submitted that this Court has limited jurisdiction to interfere with the findings; as the law has been settled by this Court in Raj Singh v. Kendriya Vidyalaya Sangthan & Ors : 2012 IV AD (Delhi) 329 wherein Division Bench of this Court has held as under:-

"6. We see no reason to interfere with the conclusion arrived at by the Tribunal. This is so because it is a settled principle of law that in so far as the disciplinary proceedings are concerned, neither the Tribunal nor this court enters into re- appreciation of evidence. If there is some evidence to support the conclusion arrived at by the Inquiry Officer and the Disciplinary Authority, neither the Tribunal nor this Court would return its finding in place of that of the lower authorities. This is clearly not a case of no evidence and, therefore, no interference is called for."

22. She further submitted that the petitioner has not argued as it is violation principle of natural justice and also not the case of 'no evidence'. The inquiry officer considered each and every aspect and reached at the conclusion that the charge against the petitioner has been fully proved.

23. After considering the report submitted by the inquiry officer, the disciplinary authority imposed penalty proportionate to the charges levelled against the petitioner.

24. She further submitted that the petitioner has admitted before the

inquiry officer as clearly mentioned in its report that the petitioner has acknowledged the receiving of all these documents with the annexures. Therefore, she submits that the he did not inform the authorities, at the relevant time, he was not conniving with the millers. Huge paddy was removed and resultantly rice was sold in the open market at lower prices which could fetch better price. Though, no loss was caused to FCI; however, petitioner cannot be left without the penalty in the situation.

25. I have heard learned counsel for the parties.

26. After considering the submissions of both the parties and legal proposition, it emerges that the appellate authority recorded in its impugned order dated 14.01.2000 that in the inspection report of Sh.C.D. Bhardwaj, Manager (Opn), ZO (North), it has been clearly indicated that the rice stocks were available with the millers against the unauthorised lifted paddy. Even though the rice stocks were available in the mill premises, it is amply clear that without issue of release order, the millers unauthorisedly lifted the paddy and milled at their own which was against the agreement.

27. It is further recorded that as per orders of the SRM, Haryana/District Manager, the paddy for the crop year 1995-96 was stored in Millers premises inspite of the protests from the concerned staff vide telegram dated 21.10.1995.

28. The petitioner informed the Rice Miller about unauthorised lifting of paddy and the same was also endorsed to AM (D) Safidon for information and further necessary action. The headquarter squad did not undertake any physical verification of stocks.

29. As per storage agreement, the miller was responsible for quality and quantity of the stocks although the stocks were under the joint custody of miller and FCI. As per record, the millers had admitted about the unauthorised lifting of paddy and availability of resultant rice within the mill premises which was offered to FCI.

30. It is further recorded that as per record, AM (D), Safidon had certified that the miller delivered the rice against unauthorised lifting of paddy. However, the remarks had been indicated by AG-I that the rice was dumped by the millers and the same was rejected by TAs as the same were not within the specifications. It may, however, as per the tour note of Shri C.D. Bhardwaj, the then Manager (Opn) ZO (N) that although rice millers had given undertaking that they were ready to deliver the resultant rice against the quantity of paddy lifted by them without issuance of release orders but unless FCI receives the rice as per specifications for the variety of paddy stored in the millers premises, there were shortage in the paddy stocks. The Inquiry Officer in his report has also mentioned that even if the millers have delivered the rice, the offence of misappropriation of paddy does not get mitigated in any manner.

31. I note from the impugned orders it is not established that the petitioner had knowledge or connived with the millers in lifting the paddy unauthorisedly. But appellate authority has erred in recording that reporting of the shortage by the petitioner is his confession.

32. Therefore, the order passed by the appellate authority based on the inquiry report is without application of mind.

33. It is pertinent to mention here that despite the millers admitted their guilt, no FIR was directed to be lodged against them. Moreso, the impugned orders have been set aside by the High Court of Punjab and Haryana, as referred to above.

34. In view of the above discussions, instant petition is allowed.

35. Consequently, the impugned orders dated 12.08.1998 and 14.01.2000 passed by the disciplinary authority and the appellate authority respectively against the petitioner are hereby set aside.

36. In consequence to the order passed above, back wages with increments and promotion, if any, be calculated and paid to petitioner within four weeks from today. In case of any delay, petitioner shall be entitled to simple interest @ 8% till the date of payment to be calculated after four weeks from the date of this order.

37. Copy of order be sent to respondent for compliance.

38. No order as to costs.

SURESH KAIT, J MAY 22, 2012 Mk