4: Smt. Modalasha Basumatary vs Page No.# 2/13
2025 Latest Caselaw 4837 Gua

Gauhati High Court

4: Smt. Modalasha Basumatary vs Page No.# 2/13 on 20 May, 2025

Author: Nelson Sailo

Bench: Nelson Sailo

                                                                 Page No.# 1/13

GAHC010008332012




                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                       Case No. : WP(C)/4379/2012

         SMT. KHARGESWARI BASUMATARI and Ors
         W/O. LATE BHUBAN CH. BASUMATARY, R/O CHIRING CHAPORI,
         DIBRUGARH, DIST- DIBRUGARH, ASSAM

         1.1: SMT. KHARGESWARI BASUMATARI
         W/O. LATE BHUBAN CH. BASUMATARY

         R/O. CHIRING CHAPARI
         SANTOSHI MAA ROAD
         DIBRUGARH-786001.

         1.2: SRI DIBYAJIT BASUMATARY
         W/O. LATE BHUBAN CH. BASUMATARY

         R/O. CHIRING CHAPARI
         SANTOSHI MAA ROAD
         DIBRUGARH-786001.

         1.3: SMT. LIPIKA BASUMATARY
         W/O. LATE BHUBAN CH. BASUMATARY

         R/O. CHIRING CHAPARI
         SANTOSHI MAA ROAD
         DIBRUGARH-786001.

         1.4: SMT. MODALASHA BASUMATARY
         W/O. LATE BHUBAN CH. BASUMATARY

         R/O. CHIRING CHAPARI
         SANTOSHI MAA ROAD
         DIBRUGARH-786001

         VERSUS
                                                        Page No.# 2/13

THE FOOD CORPORATION OF INDIA and ORS.
HEAD QUARTERS, 16-20 BARAKHAMBA LANE, NEW DELHI-1100

2:THE MANAGING DIRECTOR
THE FOOD CORPORATION OF INDIA
 HEAD QUARTERS
 16-20 BARAKHAMBA LANE
 NEW DELHI-1100

3:THE ZONAL MANAGER NE
THE FOOD CORPORATION OF INDIA
 ZONAL OFFICE
 NEZ
 GHY-7

4:THE SENIOR REGIONAL MANAGER
THE FOOD CORPORATION OF INDIA
 REGIONAL OFFICE
ASSAM REGION
 G.S. ROAD
 ULUBARI
 GHY-7

5:THE ASSTT. GENERAL MANAGER P
THE FOOD CORPORATION OF INDIA
 REGIONAL OFFICE
ASSAM REGION
 G.S. ROAD
 ULUBARI
 GHY-7

6:MANAGER ADMN
THE FOOD CORPORATION OF INDIA
 REGIONAL OFFICE
ASSAM REGION
 G.S. ROAD
 ULUBARI
 GHY-7

7:SRI S.K. DEB
 RETD. S.P.
 DIBRUGARH
 C/O DISTRICT OFFICE
THE FOOD CORPORATION OF INDIA
 DIBRUGARH
 DIST- DIBRUGAR
                                                                       Page No.# 3/13

Advocate for the petitioners:        Mr. D Sarmah
                                     Mr. A Sarma
                                     Mr. T Baruah
                                     Mr. S Dutta
                                     Mr. M P Goswami

Advocate for the respondents:        Mr. P K Roy, SC, FCI

BEFORE

HON'BLE MR. JUSTICE NELSON SAILO

Date of hearing & judgment : 20.05.2025

J U D G M E N T & O R D E R (ORAL)

Heard Mr. S Dutta, learned Senior Counsel assisted by Mr. B J Medhi for the petitioner and also Mr. P K Roy, learned Senior Counsel and Standing Counsel, FCI assisted by Ms. A Chakraborty for the respondents.

[2.] By filing this writ petition, the petitioner has challenged the Enquiry Report dated 31.12.2023, the impugned Order dated 19.09.2005 by which, the penalty of reversion to the next lower post of AG-I(D) has been imposed upon him till his retirement with immediate effect and the Order dated 30.11.2005 (Copy not annexed) by which, the pay of the petitioners have been re-fixed.

[2.] Facts of the case in brief is that the petitioner while working as Assistant Manager (D), Food Corporation of India (FCI) and in-charge of Food Storage Depot (FSD) Dikom, Dibrugarh was issued a Memorandum of Charge dated 10.02.2003 vide Covering Letter dated 25.02.2003 (Annexure-I) requiring him to show-cause within a period of 10 days of receipt of the memorandum by Page No.# 4/13

submitting a written statement of defence and to state whether he desires to be heard in person. Alongwith the said communication, apart from the Memorandum of Charge framed under Rule 58 of the Food Corporation of India (Staff) Regulations, 1971 (Regulations of 1971), the petitioner was given the statement of Article of Charge, statement of imputation of misconduct and misbehavior with the list of witnesses, for proving the charge against him. Although the petitioner submitted his written statement of defence but the enquiry officer, upon examining two out of the three Departmental witnesses, came to the conclusion through the enquiry report dated 31.12.2003 that the charge framed against the petitioner was found to be sustainable. The petitioner was then given an opportunity to submit his representation against the enquiry report by being furnished a copy of the enquiry report. The petitioner submitted his representation against the enquiry report on 12.09.2005 denying the charges as well as the finding of the enquiry officer. The disciplinary authority, not being satisfied with his reply/representation, proceeded to issue the impugned Order dated 19.09.2005 (Annexure-IV) by which, the petitioner was imposed with a penalty of reversion to the next lower post of AG-I (D) and placement at the minimum basic pay in the pay scale of AG-I (D) till retirement and with immediate effect under Regulation 56 of the Regulations of 1971.

[3.] The petitioner being aggrieved submitted an appeal before the Managing Director, FCI, New Delhi on 07.11.2005 but however, his appeal came to be rejected by the said authority vide Order dated 21.11.2006. Aggrieved, the petitioner is before this Court.

[4.] Be it stated herein that the writ petition was filed on 10.09.2012 while the petitioner retired from service on 30.06.2012. After the filing of the writ petition, Page No.# 5/13

the petitioner expired on 08.10.2016. On account of his death, the wife of the petitioner, his son and two daughters have been impleaded as petitioner Nos. 1(i), (ii), (iii) & (iv) vide Order dated 07.03.2018 passed in I.A(Civil) No. 637/2018. However, for the sake of convenience the original petitioner shall be still referred to as the petitioner hereafter as well.

[5.] Mr. S Dutta, learned Senior Counsel submits that since the cause of action submits, the legal heirs of the petitioner have been impleaded in his place. He submits that although the shortages alleged to have been found was written off as per the sanction made on 23.12.2001 but the respondent authorities for reasons best known to them proceeded to initiate Departmental proceedings against the petitioner vide Memorandum dated 10.02.2003. He submits that out of the three cited Departmental witnesses, only two of the witnesses were examined and all that was stated by the said witnesses was that a preliminary enquiry had earlier been made in which they found some loss sustained by the FSD, Dikom and the said report may be considered as their evidence. The enquiry officer accordingly acted upon the same by marking it as Exbt. P-I. However, the enquiry report does not contain as to on what basis the findings have been arrived at by the enquiry officer. Therefore, the conclusion arrived at against the petitioner is without any basis.

[6.] The learned Senior Counsel submits that the petitioner had clearly indicated to the respondent authorities that FSD Dikom was in a dilapidated condition and there were no proper fencing to prevent miscreants or outsiders to get into the Campus. Such complaint letter was written to the owner of the Dikom FSI godown building as early as on 07.04.1993 and as late as 19.03.1998. He submits that apart from the petitioner being in-charge of the Page No.# 6/13

FSD Dikom, there are several officers and staff who are responsible to look after the said FSD, but however, the respondent authorities have singled out the petitioner and fixed the liability of the loss solely upon him. Referring to the alleged loss sustained, the learned Senior Counsel submits that the percentage of the loss in the average was about 3%, but however, the respondents have stressed on the fact that the loss sustained was as high as 15% which only is an exaggeration of the alleged loss. He submits that even at an earlier point of time, the respondent authorities had decided to write off the loss sustained without drawing any Departmental proceeding against those who may have been responsible but in case of the petitioner, even after it was decided to write off the loss, proceedings have been drawn against him. He, therefore, submits that the impugned action of the respondents should be interfered with by this Court. He further submits that although the original petitioner may have expired but whatever monetary benefit that may be permissible and admissible can be given to his legal heirs who have now been impleaded as petitioners subsequently.

[7.] The learned Senior Counsel, in order to impress upon the Court that in order to come a finding against the petitioner, the enquiry officer has to come to a conclusion that the charges have been proved on the basis of admissible evidence, which is not present in the present case relies upon the case of Punjab National Bank Vs. Kunj Behari Misra , reported in (1998) 7 SCC 84 and also Judgment & Order dated 05.02.2025 rendered by a Co-Ordinate Bench of this Court in WP(C) No.7232/2015 (Nabajyoti Sarma vs. The New India Assurance Company Limited & 3 Ors.) Concluding his argument, the learned Senior Counsel also submits that Exbt. P-I a copy of which has been supplied to him today by the learned Senior Counsel for the respondents, also does not Page No.# 7/13

reveal the materials found against the petitioner by giving specific details and dates. In other words, only general findings have been made which by no means can be considered to be the evidence for proving the charge made out against the petitioner. Under the circumstance, the learned Senior Counsel submits the impugned orders may be interfered with and the petitioners may be granted appropriate relief as deem fit and proper by this Court.

[8.] Mr. S Dutta, learned Senior Counsel has also submitted that even prior to the conclusion of the Departmental proceedings drawn up against the petitioner, the respondent authorities have already made up their mind that the petitioner is guilty of the misconduct which can be clearly seen from the statement of Article of Charge framed against him. The same amounting to putting the cart before the horse, the impugned action of the respondents and the ultimate penalty imposed upon him should be interfered with by this Court.

[9.] Mr. P K Roy, learned Senior Counsel, per contra, submits that the writ petition itself suffers from delay and laches in view of the fact that the impugned penalty was passed on 19.09.2005 whereas, the petitioner has filed the writ petition only in September 2012 after about 7 (seven) years. Moreover, the original petitioner had retired on 30.06.2012. He submits that for 7 long years while the original petitioner was in service, he did not challenge the order of penalty and for such, delay and laches on his part, the writ petition should be dismissed at the very outset.

[10.] The learned Senior Counsel further submits that since the original writ petitioner has expired, it was incumbent upon the successor petitioners to amend the prayer and relief being sought which otherwise, has not been done.

Page No.# 8/13

He submits that the original petitioner is no more and therefore, there is no question of recalling the reversion order that was imposed upon him. Therefore, without any amendment to the prayer made in the writ petition, Court may not grant any relief to the petitioner. On merits, the learned Senior counsel submits that the respondent authorities have meticulously followed the Regulations of 1971 by giving due opportunity to the petitioner to show-cause as to why he should not be proceeded against for having caused the loss to the FCI. The petitioner was also given the chance to not only participate in the proceeding but also to cross-examine the witness produced by the Department.

[11] Upon conclusion of the enquiry, since the enquiry ended against the petitioner, he was given a copy of the enquiry report and given the opportunity to make his representation/reply. Since the disciplinary authority was not satisfied with the reply submitted by the petitioner which basically was of denial of the charges, the said authority proceeded to impose the impugned penalty of reversion upon the petitioner which thereafter, was also upheld by the appellate authority. He submits that when the charges have been duly proved, Court may not interfere with the penalty imposed upon the delinquent officer. In this connection, the learned Senior Counsel has taken the support of the Apex Court's decision in Deputy Commissioner, Kendriya Vidyalaya Sangthan & Ors. Vs. J Hussain, reported in (2013) 10 SCC 106. The learned Senior Counsel has also produced the Departmental records for perusal of this Court.

[12.] I have heard the submissions made by the learned counsels for the rival parties and I have perused the materials available on record.

[13.] In respect of the delay in filing the instant writ petition, it may be seen Page No.# 9/13

that the impugned order was passed on 19.09.2005, while the petitioner filed the instant writ petition on 10.09.2013, which is about 7 years from the date of passing of the impugned order. This Court, while issuing notice of motion on 17.09.2012, had also observed that the question of delay and laches and also estoppel is kept open to be decided in due course. Although no specific time frame is fixed for filing of writ petitions but a person aggrieved should approach the Court as early as possible so that the consideration of the grievance raised can be done while the issue remains fresh and alive. The petitioner in the present case at paragraph No. 22-A of the writ petition has admitted that there has been a considerable delay caused in approaching the Court to challenge the impugned penalty imposed upon him. According to him, he had pursued the action of the authorities concerned since 2005 to 2011. He has also taken the ground that he was having financial difficulty since he had to look after the welfare of his family. This apart, he had to undergo three surgeries in Dibrugarh Medical College during the last 3 years.

[14.] Although the petitioner has not given the particulars as to how he pursued the matter with the FCI authorities or the details of the surgery said to

have undergone by him, the question is as to whether the rights of any 3 rd party has been effected because of the delay. The answer only appears to be in the negative. The Apex Court in a catena of decisions has held that when the

rights of a 3rd party is not affected, delay cannot be said to be fatal. Therefore, upon due consideration, this Court is not inclined to dismiss the writ petition on the ground of delay.

[15.] The petitioner was furnished with the Memorandum of Charge containing Page No.# 10/13

the statement of Article of Charge framed against him, alleging that during the period from December 1996 to November 1997, he failed to discharge his duties properly and maintain absolute integrity and devotion to duty on account of huge loss of food grains during the said period from FSD Dikom, which was detected in the course of investigation conducted by a team constituted by the authorities. Alongwith the statement of Article of Charge, the statement of imputation of misconduct and misbehavior was also framed and given to the petitioner containing the details of findings of stock-wise loss in the course of investigation conducted at the District level. Three officials of the Department were cited as the Departmental witnesses but only two witnesses were examined.

[16] PW-I during the Departmental enquiry stated that as per the order of the District Manager, FCI, Dibrugarh, he alongwith two other officials had investigated the cause of storage loss at FSD Dikom. Upon such investigation, they found huge irregularities. The enquiry officer in his enquiry report has marked the investigation report as Exbt. P-I. As per the enquiry report, PW-2 examined on behalf of the Department during the enquiry had made similar statement as PW-I. Further, as per the enquiry report, the petitioner had taken the plea that Dikom godown was located in a rural area without boundary walls and proper electricity and therefore, miscreants took the opportunity to steal the stock from outside. The matter was taken up by the authority concerned but no suitable action came to notice. In this connection, although a number of correspondences have been relied upon by the petitioner to show that repairing of the FSD Dikom was required due to seepages from the roof and lack of boundary wall but however, there is no explanation as to how the loss of food grain has been sustained by way of theft from outside without there being any Page No.# 11/13

report made to the Police in this regard. As per the enquiry officer, in his enquiry report, the watch and ward Staff of Dikom informed their inability to perform duty at night but the same was to not effect. There was trouble from birds as well since the godown is not conventional one and that there was water logging during the monsoon caused variation of moisture of the stock inside the godown.

[17.] According to the enquiry officer, the investigation report dated 17.08.1998 was taken into consideration besides other records and the deposition statements of the witnesses. The petitioner was given a full chance to cross- examine the prosecution witnesses but he could not refute the charge brought against him. That the petitioner, in reply to the Memorandum of Charge, indirectly admitted to the charge brought against him by showing some practical difficulty faced by him, which is said to have been communicated to the higher authorities of the FCI. The petitioner, in response to the enquiry report, denied his responsibility for the loss of food grain and at the same time, stated that prior to December 1996 and after November 1997, the storage loss at FCI Dikom were on higher side and the competent authority, upon considering reasons responsible for the loss to be reasonable and genuine, gave the sanction for the loss to be written off. Similarly, since there was already a sanction for writing off the loss alleged to have been sustained while he was functioning as Assistant Manager (D), FCI in-charge of FSD Dikom, he may be relieved from the charge leveled against him. However, not being satisfied with the reply made by the petitioner to the enquiry report, the disciplinary authority decided to impose the impugned penalty of reversion.

[18.] It may be seen from the records that 3 (three) officers including PW-1 Page No.# 12/13

and PW-2 were deputed to enquire into the storage loss in FSD Dikom for the period from December 1996 to March 1997, September 1997 to November 1997 and February 1998. During the enquiry, the Depot in-charge which is the petitioner from 23.12.1997 to 01.04.1998 was not present and it was one Dulal Hazarika, Assistant Grade-III (D) who looked after the works on in-charge basis. In the enquiry, the Team of Officers found that abnormal gunny bags were saved and consumed without any justification. In some occasion, it was found that the gunnies were saved and consumed on the day when there was no operation on the depot. In some cases, the bags were shown as refilled more that the stock issued on that day. The said finding has been relied upon by PW- 1 and PW-2. However, the fact remains that the Team of Officers had conducted preliminary enquiry and on the basis of the findings could not recommend the writing off the loss and rather, recommended that a detailed enquiry be conducted. In terms of the finding and recommendation, an enquiry was conducted against the petitioner but however, no separate detailed enquiry appears to have been conducted and instead, reliance has been placed upon the preliminary enquiry. The materials on record also do not go to show that the preliminary enquiry report has been given to the petitioner. Rather, it was during the course of the hearing today that a copy of the same has been furnished to the learned Senior Counsel for the petitioner.

[19.] Under the circumstances, it cannot be said that the charge framed against the petitioner has been proved. No doubt, charges in a Departmental proceeding can be proved by preponderance of probabilities, unlike a criminal trial where the charge has to be established with proof beyond reasonable doubt but the fact remains that by relying upon the materials such as the preliminary enquiry report, without the same having been provided to the Page No.# 13/13

petitioner, the enquiry report and the acceptance of the same by the disciplinary authority according to this Court, cannot amount to proof of the charge. It is too late in a day to call for a de novo enquiry and moreover, when the original petitioner has since expired.

[20.] Upon due consideration of the case in its entirety, this Court finds that the impugned orders dated 31.12.2003 and 19.09.2005 are not sustainable and accordingly, they are set aside. Any consequential steps taken pursuant to the passing of the impugned Order dated 19.09.2005 will also be vitiated. Since the impugned Order dated 19.09.2005 reverting the original petitioner to a lower post of AG-I (D) has been interfered with amongst others, he shall be treated to have continued as Assistant Manager (Depot), FCI till his superannuation on 30.06.2012. Necessary adjustments or re-fixation of his pay and emoluments be made by the respondents within a period of 6 (six) weeks from the date of receipt of a certified copy of this order and thereafter, disbursal of the amount be made within a period of 2 (two) months thereafter to his legal heirs i.e., the petitioners.

[21] With the above observation and direction, the Writ Petition stands disposed of as allowed. No cost.

JUDGE

Comparing Assistant