Shri Lalit Prasad v. The Managing Director, Food Corporation of India

1. By this writ petition filed under Article 226 of the Constitution of India, petitioner, an employee of the respondent-Food Corporation of India (FCI) impugns the orders passed against him by the departmental authorities; of the Disciplinary Authority dated 30.1.1989, Appellate Authority dated 12.5.1994 and mercy appeal dismissal order dated 23.4.1997. Disciplinary Authority imposed the punishment of reduction of pay-scales in three stages with cumulative effect and which penalty has been reduced by the Appellate Authority as not to have cumulative effect. 2015:DHC:3327

2. At the outset, I must state that the present petition filed in the year 1998 was liable to be dismissed on the ground of being barred by delay and laches, inasmuch as, there existed no provision in the service rules for filing a further challenge to the order passed by the Appellate Authority on 12.5.1994, and therefore the cause of action had accrued when the petitioner received the order of the Appellate Authority dated 12.5.1994 and this writ petition was filed on 26.5.1998 i.e after a period of about four years on receipt of the order of the appellate authority dated 12.5.1994. It has been held by the Supreme Court in the recent judgment in the case of State of Orissa and Anr. Vs. Mamata Mohanty (2011) 3 SCC 436 that though the Limitation Act, 1963 does not apply to a writ petition under Article 226 of the Constitution of India but principles of the prescribed period of limitation would apply. This is so specifically held in para 52 of the judgment. The argument of the counsel for the petitioner placing reliance upon Section 14 of the Limitation Act does not help the petitioner because for time taken in any other proceedings to be excluded, the petitioner must have proceeded bonafidely in the other proceedings, but once there was no provision for filing a further challenge to the order of the Appellate Authority before the department, the action of the petitioner in filing a challenge to the order of the Appellate Authority before the Departmental Authority cannot be said to be bonafide. Be that as it may, I have heard the counsel for the petitioner on merits and even on merits the petitioner has no case.

3. The charge against the petitioner was that the respondent had secreted the excess sugar stock, beyond what was available and to be standardized by putting in gunny bags, and since the petitioner had intention to take away the same and in furtherance of which he had put the excess stock in gunny bags, but, on coming to know of the fact that the same would be discovered by a raiding team which was coming, the petitioner along with another employee Sh. Prem Sagar emptied those extra bags by loading the excess sugar in the extra gunny bags within the gunny bags which were already standardized and stacked by the respondent-Corporation. The excess sugar beyond the prescribed limit in the standardized and stacked gunny bags, was discovered by the raiding team and hence the petitioner was issued the charge-sheet dated 25.8.1987 and the imputation of charges read as under:- “STATEMENT OF IMPUTATIONS OF MISCONDUCT OF MISBEHAVIOUR IN SUPPORT OF THE ARTICLES OF CHARGES FRAMED AGAINST SHRI LALIT PRASAD, ASSTT. GRADE. II (DEPOT). FSD, NEW PUSA (CTO). NEW DELHI. Shri. Lalit Prasad, AG II(D) was working as joint custodian of Sector C (including Foundary Shed) FSD, CTO, New Delhi during the period May & June, 1987. On receipt of some verbal complaint, a Regional Squad Comprising of S/Shri I.J.Rajput, D1(V&S), K.P.K. Nair, DM(Admn) of Regional office and K.samu, Distt. Manager (Incharge) conducted special physical verification on 19 and 20.5.87 of stocks of levy sugar stored in Foundary Shed under the charge of S/Shri Prem Sagar, AG-I(D) and Lalit Prasad, AG-II(D). The stack No. FS-20 containing 257 bags of levy sugar being balance in the stack at the time of physical verification was not in countable position. 75 bags of this stack were got restacked by the squad and lot of spillage was observed. The same was filled up in 1 ½ bags (two gunnies used) Weighing 1 Qts. 1-14-000 and 0-53- 700 (Gross weight in AT gunnies). The spillage of these 1 ½ bags weighing 1-67-700 (gross) did not belong to the stack in which it was found as the same was wet/sweated & discoloured. The result of the PV was recorded and signed by the squad, custodian and joint custodian besides the Depot Officer, CTO depot, New Delhi. Again, on receipt of a written complaint from the General Secretary of the Food Corporation of India Workers Union dated 20.5.87 (received on 21.5.87), the Regional Squad Comprising of DIV& S), TWO AII(SS), AII(QC), D1(Incharge), Distt. Office, Naraina got issued levy sugar stocks of stack No. FS-7,[8] and 9 of Foundary Shed to DSCSC on 30.5.87 and 1. against their valid release orders. The stocks of these three (illegible) issued out except about 35 bags in stack No.F up in two bags weighing Qtls. 1-55-000 as detailed hereunder:- STACK NO.

N. OF BAGS QUANTITY (IN QTLS.) 7 4 04-01-000 8 4 3-97-000 9 4 4-09-000 Total 12 12-07-000 The spillage of these 12 bags weighing 12-07-000 also did not belong to the stacks in which it was found as the same was wet/sweated and discoloured. The result of the issues and observance of spillage, as above, was recorded and signed by the squad, custodian and joint custodian besides the Depot Officer, CTO depot, New Delhi. The entries of the observance of spillage was duly recorded by the custodians in the stack-wise/Shed-wise register. The observation of Regional Squad about availability of wet, sweated and discoloured sugar in the sound sugar stacks clearly proves the allegation leveled in the that the sugar stocks which were lying in excess of declared balances under their charge, was poured in sound sugar stocks when the custodians could not whisk away excess sugar from the depot. S/Shri Lalit Prasad, and AG (2) and Prem Sagar, AG-I(D) in their representations dated 29-6-87, 7.7.87 and 28.7.87 admitted the above facts.”

4. The respondent-employer examined six witnesses and petitioner examined two witnesses in the departmental proceedings. The departmental authorities after considering the entire evidence held the petitioner guilty of the action of removing evidence of the excess sugar by pouring the excess sugar in existing stacked and standardized gunny bags stored with the respondent and this view taken on preponderance of probabilities cannot be substituted by this Court merely because another view can be possible.

5. At this stage, it would be useful to note the legal position that the orders passed by the departmental authorities are not interfered by this Court unless the orders are found to be grossly perverse i.e orders which no reasonable man can accept. Once there are two views possible of the situation and on preponderance of probability the departmental authority has arrived at one conclusion, this Court will not substitute its own conclusion for that of the departmental authority. It is settled law that this Court does not sit as an appellate court to re-apprise the findings and conclusions of the departmental authorities.

6. Another important aspect in this case which has to be noted is that petitioner and the other officer Sh. Prem Sagar in so many words admitted the facts in the reply given to the show cause notice, but sought to put the blame on the senior officer Sh. Bhagnagar, but, except an oral evidence the petitioner could not lead any substantial evidence to show that he was directed by Sh. Bhatnagar to empty the excess stocks of sugar in the illegal gunny bags in the standardized gunny bags which were stacked in the godown of the respondent. It was therefore an oral statement of the petitioner and his witness against the position that the charge of the excess sugar was within the domain of the duties of the petitioner.

7. I may note that the Managing Director while passing the order in appeal already has in the facts of this case reduced the punishment from the reduction in pay of three stages not to have cumulative effect instead of the order of the Disciplinary Authority that the same ought to have cumulative effect though of course I am quiet curious and surprised as to why the Managing Director in the appellate order held that there is no financial loss, inasmuch as, surely excess stock was of value and which could have been disposed of by the respondent for a price and therefore it could not have been held by the Managing Director that respondent would have suffered no financial loss. In fact, for this is one such reason the Managing Director has reduced the punishment of the petitioner, and therefore in my opinion, the petitioner is indeed quite lucky to get his punishment reduced by the Appellate Authority/Managing Director.

8. In view of the above, I do not find any merit in this petition, and the same is therefore dismissed. No costs.

APRIL 13, 2015 VALMIKI J. MEHTA, J ib