Lakhwinder Singh vs The Food Corporation Of India & ...
2015 Latest Caselaw 2141 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) No.1628/2005

%                                                   12th March, 2015

LAKHWINDER SINGH                                           ..... Petitioner

                          Through:       Ms. Mansi Ajmani, Advocate.


                          versus

THE FOOD CORPORATION OF INDIA & ORS.                       ..... Respondents

                          Through:       Mr. Karunesh Tondon, Adv.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. By this writ petition filed under Articles 226 and 227 of the

Constitution of India, petitioner, an employee of the respondent no.1/Food

Corporation of India, impugns the orders passed against him by the

departmental authorities, the Disciplinary Authority dated 22.12.2001;

Appellate Authority dated 3/5.12.2002 and the Reviewing Authority dated

12.7.2004, whereby penalty has been imposed upon the petitioner of

reduction to the lower time scale of pay i.e from the post of AG-II(D) to AG-

III (D) for a period of two years with a further direction that his pay will be

fixed at the stage of AG-III(D) as if he would not have been promoted to the

post of AG-II(D). It is relevant to state that the Disciplinary Authority had

imposed the penalty of dismissal from services upon the petitioner, and

which was upheld by the Appellate Authority but the Reviewing Authority

reduced the punishment to reduction of pay.

2. The charge against the petitioner was that he was posted at

Malerkotla but was the custodian/joint custodian of wheat and paddy stocks

at Amargarh during the years 1997-98 and 1998-99 but in failure of his

duties he did not protect the paddy and wheat stocks from the vagaries of

weather resulting in colossal loss to the respondent no.1/employer. Due to

carelessness of the petitioner, alongwith the other persons who were also

proceeded against with departmentally, there was loss to 1,88,130 quintals of

paddy in 1997-98 and 17,250 quintals of wheat for the year 1998-99 on

account of down-grading/deterioration of the said stock. Had the petitioner

ensured proper maintenance, security and safety of stocks by adopting

damage control measures and protected the stocks by covering/de-covering

as directed by the District Manager, Sangrur, that would have saved the

respondent no.1/employer from the huge loss.

3. Before I turn to the aspects of the case and the arguments urged

on behalf of the petitioner, it is required to be noted that the scope of hearing

of a writ petition before this Court under Article 226 of the Constitution of

India which challenges the findings and conclusions of the departmental

authorities, is limited. It is settled law that this Court does not sit as an

appellate court over the findings and conclusions of the departmental

authorities. This Court will not interfere with one of the two views which

are taken by the departmental authorities on preponderance of probabilities.

This Court will only interfere in case there is violation of the principles of

natural justice or the actions of the departmental authorities are against the

law or rules of the employer-organization or the findings and conclusions are

perverse or the punishment imposed is disproportionate.

4. In the present case, the Enquiry Officer by his detailed report

running into 35 pages has analyzed the entire evidence which was led before

him, and has thereafter reached at the conclusion of the petitioner being

guilty. It may be noted that the only defence of the petitioner/ charge-sheeted

official, and which is also the only argument urged before me, is that the

petitioner was not posted at Amargarh and nor was he in-charge of the

stocks at Amargarh. The case of the department on the other hand was that

the petitioner was no doubt not posted at Amargarh but petitioner was joint

custodian of the stocks at Amargarh. With regard to this aspect, the Enquiry

Officer has given the following observations:-

"(c) Shri Lakhwinder Singh, AG. II (D) worked at H.G.Amargarh from Sep 87 to Jan 99. He was the joint custodian of paddy 1997-98 and wheat 1998-99 with Shri Bakhshish Singh, AG.I(D) Amargarh alongwith Punjab Mandi Karan Board, Malerkotla -I. (Statement of DW-3, Page 37/100 or Exhibit P-2/2 and Exhibit D-6).

xxxxxxxx (bp) Shri Lakhwinder Singh, AG.II(D) identified his signature on page 37/100 for Exhibit P-2/2 and confirmed its contents. (Cross-examination of DW-3)." (underlining added)

5. Enquiry Officer in his detailed report dated 3.10.2001 has

given the factual narration with respect to storing of the stocks at Amargarh

during the years 1997-1998 and 1998-1999, how the stocks were damaged,

how the remedial actions were not taken, and how various persons

including the petitioner were guilty of causing loss on account

deterioration/ down-grading of stocks. I need not refer to all these aspects

because of the limited issue involved of whether the petitioner was a joint

custodian and hence was also responsible for the stocks at Amargarh

although he was only posted at Malerkotla.

6. Learned counsel for the petitioner argued by placing reliance

upon the documents Annexure P-3 (pages 58 and 59), Annexure P-4 (pages

60 and 61), Annexure P-5 (Page 62) and Annexure P-6 (Page 63) (these

annexures being the annexures to the writ petition) that the petitioner was

not responsible for the stocks at Amargarh and therefore petitioner could

not have been held guilty.

7. Qua the aforesaid documents being Annexures P-3 to P-6 the

case of the petitioner is that the Enquiry Officer had first received these

documents, but thereafter the Enquiry Officer had forcibly returned these

documents back to the petitioner and therefore these documents could not

become part of the Enquiry Officer's record. Petitioner argues that the

aspect that the Enquiry Officer forcibly returned these documents has been

mentioned by the petitioner in the Review Petition dated 17.2.2003 against

the order of the Appellate Authority. It is argued that once all these

documents are taken into consideration, petitioner will stand exonerated,

and therefore the order passed by the Reviewing Authority dated 12.7.2004

be set aside.

8. At the outset I must note that the petitioner has not filed the

representation given against the Enquiry Officer's report, as also the appeal

filed before the Appellate Authority, and which documents were required to

show that the petitioner had taken up a case before the Disciplinary

Authority and the Appellate Authority that the Enquiry Officer had forcibly

returned the documents Annexures P-3 to P-6. Also, in my opinion, it is not

enough even if the petitioner challenged the Enquiry Officer's report before

the Disciplinary Authority and the Appellate Authority on the ground that

the Enquiry Officer had forcibly returned the documents, inasmuch as, if

the documents were allegedly forcibly returned by the Enquiry Officer, then

it was the petitioner who had to immediately after the alleged illegal

returning of the documents write a letter to the Enquiry Officer alongwith

the documents that the petitioner wanted the documents to come on record

but the petitioner was illegally forced to return the documents. Admittedly,

before me, no such letter which is written by the petitioner to the Enquiry

Officer that the Enquiry Officer had forcibly returned the documents

Annexures P-3 to P-6, has been filed. Thus it is doubted that the Enquiry

Officer forcibly returned Annexures P-3 to P-6.

9. Now let us assume that the documents being Annexures P-3 to

P-6 ought to be a part of the record of the Enquiry Officer and without

which there will be violation of the principles of natural justice, and

therefore let us examine these documents to find out whether they support

the case of the petitioner that he was not the joint custodian of the stocks at

Amargarh during the years 1997-98 and 1998-99.

10. So far as the first document being Annexure P-3 is concerned,

the said document is only limited to two months of October and November,

1997 and that too only on the aspect that the petitioner was not deputed at

Amargarh to carry out receiving of paddy stocks in October and November,

1997. It is however noted that the charge against the petitioner in the

present case is not only for the months of October and November, 1997, but

is for the entire years 1997-98 and 1998-99 and therefore, firstly this

document will not help the petitioner because it is only for two months.

This document secondly will also not help the petitioner because this

document only shows that the petitioner was not deputed at Amargarh to

carry out receipt of the paddy stocks in October and November, 1997

whereas the charge against the petitioner is not taking necessary steps for

proper storage and which negligence caused damage/deterioration to the

stocks and also that even after damage was caused remedial measures were

not taken by the petitioner. Therefore, in my opinion, the document

Annexure P-3 being the certificate dated 6.9.1999 will not help the

petitioner to establish that the petitioner was not the joint custodian of the

stocks at Amargarh and that the petitioner was not guilty of negligence

which has been found against him by the Enquiry Officer.

11. So far as the second argument of Annexure P-4 is concerned,

once again this document does not help the petitioner because this

document only shows that certain officers were to take the receipt of the

stocks from 22.9.1997 and in which the name of the petitioner was not

there, but, it is not the case of the petitioner that after issuing of this

document Annexure P-4, no further order was issued that petitioner was

relieved from his duties either for receipt of stocks or as the joint custodian

of stocks at Amargarh and that he thereafter was not to continue as joint

custodian of the stocks at Amargarh. Also, this document Annexure P-4 is

again only with respect to taking receipt of the stocks and not with respect

to maintenance of the stocks and the damage caused to the stocks on

account of lack of maintenance including by not complying with the orders

of taking remedial measures. Therefore, this document also in my opinion

will not help the petitioner.

12. So far as the documents Annexures P-5 and P-6 are concerned,

these are photocopies of register showing stocks at Amargarh, and which

documents are relied upon to argue that the same bear initials of some other

officers, showing that petitioner cannot be held to be a joint custodian of

these stocks. With regard to these documents Annexures P-5 and P-6, these

will not help the petitioner because these are not the documents to show that

who were the persons who were the custodians of the stocks at Amargarh

and signing of registers of stocks by a particular person who is not the

petitioner cannot mean that petitioner can be held that he was not the joint

custodian of the stocks at Amargarh. Petitioner therefore can derive no

benefit of the documents Annexure P-5 and P-6.

13. In view of the above, argument of the petitioner of violation of

the principles of natural justice because the documents relied upon by the

petitioner have not been considered by the Enquiry Officer, has no legs to

stand upon and is rejected.

14. At this stage, I would also like to state that I have already

reproduced above the two portions of the Enquiry Officer's report being

paras (c) and (bp) and which paras show the conclusions of the Enquiry

Officer of the petitioner being a joint custodian on the basis of the statement

of DW-3, page 37/100 or Ex. P-2/2 and Ex.D-6, but, petitioner has

deliberately and conveniently failed to file these documents before this

Court and which documents would clearly have shown that the

departmental Enquiry Officer was justified in arriving at the conclusion of

the petitioner being the joint custodian of the stocks at Amargarh.

Petitioner therefore is guilty of concealing relevant documents/evidence on

the basis of which petitioner has been found guilty by the Enquiry Officer.

15. In view of the above, neither there is any violation of the

principles of natural justice nor is there any perversity in the findings by the

Enquiry Officer.

16. Learned counsel for the petitioner at the conclusion of

arguments sought to place reliance upon an additional affidavit dated

18.2.2014 filed in this writ petition of the year 2005 and relying on the

same it is contended that the petitioner has been exonerated by a particular

order dated 31.7.2010 in the departmental enquiry on the same set of

allegations and therefore the petitioner should also be exonerated even in

this case. For the sake of convenience, the relevant order and the paragraph

of the additional affidavit relied upon by the petitioner is reproduced

below:-

"2. That during the pendency of the present Writ Petition, the respondent employer Food Corporation of India vide various orders, in respect of the same charges, had already passed the

exoneration order dated 31-7-2010 in the Departmental Enquiry on the same set of allegations and the last concluding para of the order is reproduced below:

"And Whereas the undersigned has carefully gone through the contents of the charge sheet, reply submitted by the CO, connected records available on the file and order passed by Hon'ble Court, Punjab and Haryana, Chandigarh. On perusal of the case it suggest that Shri Lakhwinder Singh, AG II(D) was not posted at Amargarh during relevant period. His posting was at Malerkotra during relevant period and he was not custodian of the stocks at Amargarh. As such, his contentions is found satisfactory.

Now, therefore, the undersigned in exercise of the powers conferred under Regulations 56 of FCI (Staff) Regulations, 1971 hereby 'EXONERATES' the said Shri Lakhwinder Singh, ex. AGII(D) from the charges leveled against him.

Sd/-Nilkanth S. Avhad, General Manager"

17. I am unable to agree with the argument on behalf of the

petitioner because what were the exact statement of facts in the charge-sheet

which led to passing of the order dated 31.7.2010, what is the report of the

enquiry officer qua those facts are not known because such documents have

not been filed and therefore it is not possible for this Court to hold merely

because petitioner argues that on the same set of facts petitioner stood

exonerated by an order dated 31.7.2010. Obviously, petitioner besides the

present case would have other cases/departmental proceedings against him

for other dereliction of duties but exoneration of the petitioner on such issues

does not mean that petitioner will get automatic exoneration in this case,

inasmuch as, separate set of facts and separate breaches of duty will lead to

issuance of separate charge-sheets on the separate facts and consequent

separate departmental proceedings.

18. Dismissed.

MARCH 12, 2015                                VALMIKI J. MEHTA, J.
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