Ajay Kumar Dixit vs M.P. Warehouse And Logestic ...
2023 Latest Caselaw 12892 MP

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               IN THE HIGH COURT OF MADHYA PRADESH
                                     AT JABALPUR
                                          BEFORE

                      HON'BLE SHRI JUSTICE ANAND PATHAK


                        WRIT PETITION No. 18462 of 2017
       Between:-

       AJAY KUMAR DIXIT S/O SHRI G.P. DIXIT, AGED
       57 YEARS, OCCUPATON -UNEMPLOYED R/O
       ARCHANA HOMES, INDUS PARK PHASE -II,
       AYODHYA BYPASS ROAD, BHOPAL (MADHYA
       PRADESH)

                                                                        .....PETITIONER
       (BY SHRI S.K. RAO - SENIOR ADVOCATE WITH SHRI
       SUDHIR CHATURVEDI - ADVOCATE)
       AND

1.     M.P. WAREHOUSE & LOGESTIC CORPORATION,
       THROUGH ITS CHAIRMAN, OFFICE COMPLEX,
       BLOCK -A, GAUTAM NAGAR, BHOPAL.
2.     M.P. WAREHOUSE & LOGESTIC CORPORATION,
       THROUGH ITS MANAGING DIRECTOR, OFFICE
       COMPLEX, BLOCK -A, GAUTAM NAGAR,
       BHOPAL.

                                                                     .....RESPONDENTS
       (BY SHRI PRAVEEN DUBY - ADVOCATE)
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        Reserved on                                  :           08-02-2023
        Delivered on                                 :           09-08-2023
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        This petition having been heard and reserved for orders coming on for
pronouncement this day, delivered the following:-
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                                  ORDER

1. The present petition under Article 226 of the Constitution has been preferred seeking following reliefs:

"i. That this Hon'ble court may kindly be pleased to issue appropriate writ/writs, order/orders, direction/directions to quash the Charge-sheet dated 22.10.2011 (ANNEXURE P/6).

ii. That, this Hon'ble Court may kindly be pleased to issue appropriate writ/writs, order/orders, direction/directions and please to quash the impugned penalty orders dated 17.02.2017 (ANNEXURE P/1) and rejection of appeal dated 28.06.2017 (ANNEXURE P/2) being unjust, uncalled for, illegal, arbitrary and against the principles of natural justice and contrary to the provisions of section 20(2) & 20(3) of The M.P. Agricultural Warehouse Act, 1947 and its Rules and also contrary to the Staff Regulations 1962. And further direct the respondent to reinstate the petitioner in service.

iii. Please to issue writ of Mandamus to the respondents directing to pay all financial benefits, including pay allowances and back wages.

iv. That any other order or direction doing justice in the matter in favour of the petitioner may also be

please to pass."

2. Precisely stated facts of the case are that petitioner was appointed as Quality Controller in the Clerical Cadre in Class -III post but designation has been styled as Branch Manager. After serving as Junior Technical Assistant/Quality Controller between the period 14- 07-2007 to 06-09-2011 at Biaora he was transferred to Shajapur on 06-09-2011 and handed over charge to A.K. Mishra, Branch Manager, Biaora. Later on, petitioner was placed under suspension vide order dated 09-09-2011 on the ground for keeping stocks of food grains at Biaora in unscientific manner.

3. It appears that Shri A.K. Mishra who took charge from petitioner submitted a letter dated 11-09-2011 to the Regional Manager of the M.P. Warehousing & Logistic Corporation (respondent No.1 herein) for rectification of calculation of the stock contending that earlier mistake occurred in counting the bags and in place of 22373, in fact 24467 bags were found and according to which there was excess of 2094 bags. A committee was constituted for ascertaining the correct figures of the bags kept in the godown having capacity of 3500 metric tons.

4. It appears that before the Fact Finding Committee submitted its report, petitioner was served with a charge-sheet dated 22-08-2011 in which two charges were levelled. One was shortage of 3662 bags in the stock and another was shortage of soyabean bags in godown number 6&7 which could impose financial burden over the Corporation.

5. After receiving charge-sheet, petitioner submitted his reply and he stated that he already handed over charge of Biaora Branch on 06-09- 2011 and as such no shortage of stock was found at the relevant point of time. He also raised the point that report of the Fact Finding Committee was not furnished to the petitioner nor the documents so prescribed in the list of documents from serial No.1 to 8 were supplied to him which amounts to denial of documents and action impugned is also against the principle of natural justice.

6. Disciplinary authority appointed Shri P.K. Gajbhiye as enquiry officer and Shri M.K. Gorakhpuriya as presenting officer. As alleged repeated requests of petitioner to provide documents were not acceded to and enquiry proceeded. On pre-prepared question answer form, Shri A.K. Mishra (MW-1), Shri D.K.Havaldar (MW-2) and Shri Sanjeev Tomar (MW-3) were examined, an act which according to petitioner was illegal and violative of principle of natural justice. Petitioner also examined defence witnesses (total eight in number).

7. Enquiry officer prepared the report, gave his finding and found the charges proved.

8. Disciplinary authority considered the enquiry report, accepted the findings of enquiry officer and inflicted the penalty of dismissal from service and held that Corporation suffered huge losses of Rs.1,04,72,094/- which are to be recovered from the petitioner. An appeal was preferred at the instance of petitioner but the same was also dismissed by the appellate authority/ Chairman of the

Corporation. Therefore, this petition has been preferred.

9. Learned senior counsel appearing for the petitioner has raised several grounds and taken this Court to the different alleged irregularities and illegality caused by the authority/respondent while conducting departmental enquiry.

10. However, thrust of arguments on behalf of petitioner was that charge-

sheet refers list of certain witnesses and list of certain documents (Annexure P/8 collectively) and contains reference of enquiry committee but it is the submission of learned senior counsel for the petitioner that no enquiry committee was constituted, no report of enquiry committee was placed in the enquiry proceedings to hold that petitioner embezzled public money and because of negligence of petitioner, Corporation suffered huge financial losses. Learned senior counsel refers the fact that the witnesses mentioned in the list of witnesses including members of enquiry committee, no such member ever deposed before the enquiry committee in favour of Corporation. He also refers list of documents in which it has been referred that enquiry report shall be relied (once it is received), meaning thereby that departmental enquiry proceeded without waiting for the enquiry report and in fact it should have been other way round. After receiving the enquiry report, departmental enquiry ought to have been conducted.

11. Learned senior counsel also refers the fact that no food grains' shortage was found. Even if the allegations are found to be correct

then the complainant who made the complaint of shortage, himself said no shortage of food grains exists. He submits that relevant witnesses were not appeared from the department and the documents were never supplied to the petitioner. Learned senior counsel also refers different provisions of M.P. Agricultural Warehouse Act, 1947 and according to him he suffered from the wrath of double jeopardy as petitioner not only removed from the services but recovery of Rs.1,04,72,094/- had also been imposed on him. Such huge penalty over a class -III employee is onerous in nature. When petitioner accepted in personal hearing before appellate authority about some loss in the weight of bags then it was the duty of the appellate authority to consider the case sympathetically. He relied on the judgment of Apex Court in the case of Food Corporation of India & Ors. Vs. Sarat Chandra Goswami, (2014) 13 SCC 211.

12. Learned counsel for the respondents opposed the submissions advanced by learned senior counsel and prayed for dismissal of this petition. He refers reply filed by the respondents and submits that the allegations against the petitioner were duly tested in the departmental enquiry and thereafter punishment has been inflicted. As per the allegation, huge shortage of stored stocks and deficiency in maintenance of stocks of wheat deposited by the Corporation at Rajgarh and soyabean deposited by M/s Surya Vinayak Industry were found.

13. According to him, neither the witnesses of petitioner or he appeared

timely. Due opportunity of hearing and cross-examination was given to them and since he is raising disputed questions of fact in the writ jurisdiction under Article 226 of the Constitution, therefore, the same is not maintainable. It is further submitted that petitioner although tried to raise the allegation of malafide and malice in law however, he has not produced anything on record to substantiate the same. Entire departmental enquiry were carried out as per regulation 22(1)(f) of M.P. State and Warehousing & Logistic Corporation Staff Regulations, 1962 (hereinafter referred to as "the Regulation, 1962"). Petitioner failed to point out any perversity. He prayed for dismissal of petition.

14. Heard learned counsel for the parties and perused the documents appended thereto.

15. In the case in hand, petitioner has raised certain allegations in respect of enquiry report and specially the report of enquiry committee constituted separately other than the departmental enquiry because reference of the said fact finds place in the arguments of the petitioner and in the charge-sheet itself. Therefore, it appears that one enquiry committee was appointed which was apparently had to be in the nature of fact finding enquiry but departmental enquiry report and the reply of the respondents nowhere elaborate the extent to which said enquiry committee conducted enquiry and gave its finding.

16. Whether any such committee was constituted or not and whether such committee conducted enquiry and gave its report or not, were the

questions remained unanswered. Besides that, from the allegations, embezzlement in respect of quantity of bags was apparently proved but to what extent it converted into pecuniary loss was not clarified in the whole proceedings. One document regarding pecuniary loss of different firms were mentioned but material aspect which was overlooked by the appellate authority was that the petitioner accepted the fact that bags were found less and therefore, in this manner he pleaded for plea bargaining and once a person admits his partial guilt then it was duty of the appellate authority to have considered all these aspects and thereafter would have passed the order. The judgment of Apex Court in the case of Sarat Chandra Goswami (supra) has interpreted regulation 60(1) (b) of the Food Corporation of India (Staff) Regulations, 1971 and thereafter held in favour of the then employee.

17. Punishment also appears to be shockingly disproportionate because removal and recovery both renders the petitioner vulnerable to the extent where he and his family may find hard to make both the ends meet.

18. In the cumulative analysis of facts and circumstances of the case and from perusal of the impugned orders specifically order passed by the appellate authority, it is imperative that appellate authority must reconsider all these aspects as well as the points raised by the petitioner during the course of arguments and in his written submissions. Therefore, this Court intends to allow the petition to the

extent where impugned order dated 28-06-2017 (Annexure P/2) passed by the Chairman of the Corporation as appellate authority is hereby set aside and petitioner is relegated back to the appellate authority so that appellate authority may reconsider the case again and thereafter shall pass an appropriate order as per law while considering the submissions advanced by the petitioner including quantum of punishment within six months from the date of submission of certified copy this order.

19. Petition stands disposed of with the aforesaid directions.

(Anand Pathak) Judge Anil*

ANIL KUMAR CHAURASIYA 2023.08.10 12:08:45 +05'30'