Full Text
HIGH COURT OF DELHI
Released on: 06.01.2023
TEJ SINGH ..... Petitioner
Through: Mr. Manoranjan Mishra, Advocate.
(M): 9811564139 Email: advmamishra@gmail.com
Through: Mr. Om Prakash with Mr. Vicky Kumar and
Ms. Shivangini Sharma, Advocates for respondent/FCI.
(M): 9810794902 Email: om.prkashmv@yahoo.co.in
MINI PUSHKARNA, J. (ORAL):
JUDGMENT
1. The present writ petition has been filed against the order of penalty dated 18.01.2003 passed by the Senior Regional Manager, the disciplinary authority, thereby imposing penalty of censure on the petitioner and recovery of Rs.64,756/- from the petitioner. The petitioner has also sought quashing of the order dated 10.08.2004 passed by the Zonal Manager (North), the Appellate Authority, thereby rejecting the appeal of the petitioner. The petitioner has also challenged the order dated 02.03.2009 passed by the Reviewing Authority.
2. Petitioner is an employee of the respondent, Food Corporation of India. He was appointed as Assistant Grade (AG) III (Depot) with the respondent in the year 1976 and promoted to the post of AG II (Depot) in the year 1988.
3. The petitioner was posted as AG II (D) at Kasganj Depot, pursuant to order dated 07.01.1988. While the petitioner was posted at Kasganj Depot on 05.10.1994, the charge of rice stocks was handed over to the petitioner on peripheral counting of bags, on book balance without any physical weighment from S.M. Haider, AG I (D), as per the case put forward by petitioner. The petitioner at that time was still working as AG-II (D).
4. When the petitioner was still working as AG-II (D) at Food Storage Depot, Kasganj, a memorandum dated 09.01.2002 along with statement of imputation of misconduct and misbehaviour was issued by respondent No. 3, Senior Regional Manager against the petitioner. As per the memorandum dated 09.01.2002, the allegation against the petitioner was that the petitioner failed to maintain absolute integrity and devotion to duty while posted and functioning at Kasganj Depot during the period 1997-98 and 1998-99. The statement of imputation of misconduct against the petitioner as given along with memorandum dated 09.01.2002 is reproduced as below: “ FOOD CORPORATION OF INDIA REGIONAL OFFICE 1/150, VIVEK KHAND, GOMTI NAGAR No. Vig.4(1326)/RO.LKO/ALG/STL/2001/2184 Dt: 9.1.02 MEMORANDUM Shri. Tej Singh AG.II(D)(PP) is hereby informed that it is proposed to take action against him under Rule 16 of CCS(CCA) Rules, 1965/ Regulation 60 of Food Corporation of India (Staff) Regulation, 1971. A statement of the imputation of misconduct or misbehaviour on which action is proposed to be taken as mentioned above is enclosed. Shri. Tej Singh AG.II(D) (PP) is hereby given an opportunity to make such representation as he may wish to make against the proposal. If he wishes to inspect records he may do so within 03 days of receipt of this memorandum and omit his reply within 07 days after that. If Shri. Tej Singh AG.II (D) (PP) fails to submit his representation within 10 days of the receipt of this memorandum, it will be presumed that he has no representation to make and orders will be liable to be passed against Shri. Tej Singh AG.II (D) (PP) ex parte. Senior Regional Manager Disciplinary Authority To Shri Tej Singh, AG.II (D) (through DM FCI, Aligarh) Copy to: - X X X Senior Regional Manager STATEMENT OF IMPUTATION OF MISCONDUCT OR MISBEHAVIOUR ON THE BASIS OF WHICH ACTION IS PROPOSED TO BE TAKEN AGAINST Shri.Tej Singh AG.II(D)/PP Shri Tej Singh AG.II/PP while posted and functioning as such at FSD Kashganj during the period 97- 98, 98-99 failed to maintain absolute integrity, devotion to duty and committed following irregularity:- Shri. Tej Singh AG.II/PP was entrusted with the work of storage and maintenance of foodgrains. The following cases of storage loss of wheat/ rice has been reported in respect of FSD Kashganj for the month of 11/97 and 12/97. The losses are found to be unrealistic and unjustified as per the enclosed statement: Statement of storage loss submitted in respect of FSD Kashganj for the period indicated above shows storage loss of 4.56% to 4.86% during the storage period of 56 to 83 months. The stocks were received in „B‟ category and issued in „B‟ category. The mode of weighment of stocks at the time of despatch was 100% and at the of receipt. 10% Said Shri Tej Singh AG.II/PP accepted stocks with higher percentage of moisture in connivance with depot staff and also recorded incorrect moisture at the time of issue/ despatch of stocks. Due to improper preservation and incorrect recording of moisture by Shri Tej Singh AG II/PP FCI suffered a loss as indicated in the enclosed statement. It is, thus, established from above that said Sri Tej Singh AG II (D)/PP intentionally accepted rice/ wheat stocks with higher moisture content and at the time of despatches recorded incorrect moisture to adjust the storage losses in connivance with Depot staff and for this purpose made manipulation in records to hide his misdeeds. Shri Tej Singh AG.II(D)/PP is, therefore, found equally responsible for abnormal storage losses leading to huge loss to the Corporation, 1151-54 valuing Rs.6,67,054-75. Shri Tej Singh AG.II(D)/PP thus contravened Regulation, 31 & 32A of Food Corporation of India (Staff) Regulations, 1971. (B.K. Agarwal) Sr. Regional Manager Disciplinary Authority”
5. Petitioner denied the allegations made against him in the statement of imputation of misconduct as baseless and unjustified. The petitioner filed his reply/ representation to the memorandum before the respondent No.3/ the disciplinary authority. However, the disciplinary authority by its order dated 18.01.2003 imposed the penalty of censure and recovery of Rs.64,756/- upon the petitioner. The said amount of Rs. 64,756/- as directed to be recovered from the petitioner was on the basis that the respondent herein had suffered loss of Rs. 1,29,511/- and the petitioner was imposed 50% of the said loss amounting to Rs. 64,756/-.
6. Aggrieved by the aforesaid order dated 18.01.2003 passed by the Disciplinary Authority, petitioner filed an appeal before the Appellate Authority, respondent No. 2 herein.
7. It may be mentioned herein that during the pendency of the appeal before the Appellate Authority, the Disciplinary Authority issued another memorandum dated 13.04.2004 along with statement of imputation of misconduct with the same allegation of storage loss during the same period, but for different stocks of rice. As regards the second charge-sheet dated 13.04.2004, the petitioner herein was exonerated and was not found guilty, considering the longer storage period of stocks, by way of order dated 08.10.2004 passed by the Disciplinary Authority.
8. By order dated 10.08.2004, the Appellate Authority rejected the appeal of the petitioner on the ground that the petitioner herein had not made any new contention in his appeal and had reiterated the same pleas that had already been taken into consideration by the Disciplinary Authority.
9. The petitioner, thereafter, filed writ petition being W.P.(C) No.18192/2004 challenging the order of penalty and stay of recovery of the amount. The said petition was dismissed vide judgment dated 01.07.2008 on the ground that the petitioner failed to advance any plausible reason for not seeking the remedy of review, as provided under Regulation 74 of FCI (Staff) Regulation. The petitioner was granted liberty to seek review of the order of the Appellate Authority, with further liberty to seek his legal remedies in case he was still aggrieved with the outcome of the order passed by the Reviewing Authority.
10. Pursuant thereto, the petitioner filed a review petition before the Reviewing Authority, respondent No.5. By order dated 02.03.2009, the Reviewing Authority rejected the review petition of the petitioner. Hence, the present writ petition came to be filed.
11. On behalf of the petitioner, it is contended that the order of penalty passed by the Disciplinary Authority as well as the orders passed by the appellate and the reviewing Authority are illegal on the face of it, as the petitioner cannot be held responsible for the alleged storage loss only because he was custodian of stocks at the time of disposal of the stocks of rice, after 5-7 years of its receipt. It is submitted that the petitioner neither accepted the stock nor recorded the moisture at the time of disposal of the stocks. The alleged stocks were stored from different dates in the year 1991-92 and disposed of during the years 1997-99. It is further submitted that the stocks of rice were accepted in the year 1991-92, whereas the charge was handed over to the petitioner only on 05.10.1994 on the book balance, without any physical verification. Further, the moisture percentage was being recorded by the then Technical Assistant and that recording of moisture percentage was not the job of the petitioner, as the petitioner was AG II (D) at that time.
12. It is further submitted on behalf of the petitioner that during the storage period, the stocks in question were subjected to physical verification and no discrepancy was pointed out by any physical verification team. It is further submitted that the Disciplinary Authority has violated the specific mandatory provisions of Regulation 60(d) of the Food Corporation of India (Staff) Regulations, 1971 („the Regulations‟) by not giving finding on each imputation of misconduct. This fact of not following the procedure laid down in the Regulations was also not considered by the Appellate Authority in terms of Regulation 72 (a).
13. It is further submitted on behalf of the petitioner that though names of several persons were mentioned in the statement showing details of storage loss cases, however, action has been taken only against the petitioner as he was holding a lower post than others. It is further contended that when the alleged total loss is Rs.1,29,511/- and number of persons were involved as per the statement of imputation of misconduct, the penalty of censure and recovery of 64,756, i.e., 50% of the total alleged loss imposed upon the petitioner, is highly disproportionate.
14. On the other hand, it is submitted on behalf of the respondents that the impugned orders, as passed by the respondent, have been passed in accordance with law after affording due opportunity to the petitioner and complying with all the norms of justice and fair play. It is submitted that the petitioner was the custodian of the stock of rice and was responsible for any unjustified loss due to pilferage from the storage godown during the period of his posting in the depot. It is submitted on behalf of the respondent that average abnormal storage losses to the tune of 4.86% was observed in the rice stocks of the month of November 1997, September 1998, November 1998, December 1998 and January 1999, at the Kasganj Depot. The petitioner being the AG II(D), was the custodian of stocks at the relevant time for a considerable period of stay, i.e., from May 1994 to January 1999. He was, thus, found responsible for such heavy loss to the corporation in the form of storage loss along with other officials namely Late Sh. Shyam Lal, Ex.
AG II (D) and Sh. S.M. Haider, AG- I(D). The disciplinary authority after considering the matter, issued chargesheet to the petitioner and others, under minor penalty, i.e., under Regulation 60 of the Regulations. The disciplinary authority after considering natural losses occurred during storage, i.e., shortage of weight due to dryness of moisture, period of storage as per formula evaluated and the representation of the petitioner, imposed the penalty of censure and recovery of Rs.64,756/- upon the petitioner.
15. Ld. Counsel for the respondent further submits that the petitioner himself had not insisted for checking weight of stocks to find out the position/trend of storage losses at the time of taking over physical charge of stocks from Sh. S.M. Haider, AG I-(D). Petitioner failed to conduct himself in the manner it was required in terms of Chapter 16 and particularly point no. 16.[6] of the storage manual of FCI. Petitioner was duty bound to take charge of the stocks after satisfying himself of the available stocks.
16. It is further submitted on behalf of the respondent that as per para No. 2.1.[8] of Chapter II of Depot Staff Job Description, the petitioner was required to control storage loss and transit loss, which was found on higher side and that the petitioner has rightly been held responsible for the loss by the competent authority. It is submitted that the petitioner failed to control the storage loss, which is with reference to loss of moisture that was on the higher side as per the norms which only provide 0.7% against 1% moisture loss. However in the present case the storage loss was to the tune of 4.86%.
17. It is further submitted that the petitioner was exonerated vide order dated 08.10.2004 in respect of the memorandum dated 13.04.2004 for different stocks of rice in the month of March 1998, taking lenient view because lesser quantity of unjustified losses was found by the disciplinary authority. It is further submitted on behalf of the respondent that the penalty of recovery of Rs.64,756/- is half of the actual unjustified losses suffered by the Corporation after giving advantage of censure for the quantity and the amount of justified losses. The petitioner has been penalised only for 50% of the total unjustified loss, which should not be considered as highly disproportionate. Petitioner was the custodian of the stocks and he failed to check/control storage losses, as such he has been penalised for his failure. Other officials were not the custodian of the stocks. Thus, the position and gravity of charge of petitioner is serious and different from other officials.
18. It is further submitted that recovery of loss was also effected from Mr. S.M. Haider, AG I (D) and from late Mr. Shyam Lal, Ex.
AG-II (D) also. There was no down-gradation in the stocks, as such the quality control staff was not responsible for storage loss. Every case has different merits and the disciplinary authority decided the case after considering all the factors independently in every case, hence, the recovery in one case cannot be compared with the other.
19. I have heard both the parties and have perused the record.
20. Scrutiny of the documents on record discloses that the stocks in question, were neither accepted by the petitioner nor were accepted under his supervision. The stocks in question were accepted in the year 1991-1992, whereas the charge was handed over to the petitioner only on 05.10.1994 on the book balance, without any physical verification. The petitioner has filed on record the details of the receipt/issue and name of persons who received/issued the stock of rice in question. The table as filed along with the present petition is reproduced hereinbelow:
21. The documents on record also show that during the storage period, the stocks in question were subjected to physical verification and no discrepancy was pointed out by any physical verification team.
22. The petitioner in his capacity as AG II (D) was only the custodian of stocks at the time of liquidation of the stocks. There is no document on record to suggest that the petitioner had any role to play with regard to storage loss. As seen from the documents, the moisture percentage was being recorded by the then Technical Assistant. Recording the moisture content was not within the job description of the petitioner, as the petitioner was AG II (D) at that time.
23. It is to be noted that rice is a perishable commodity and it cannot be stored for an indefinite period. As pointed out by ld. Counsel for petitioner, the quality of rice deteriorates over time on account of change in climatic condition in as much as the temperature goes high to the extent of 47 degree Celsius with very low humidity and such variation in temperature and humidity results in deterioration of stock which ultimately results in storage loss on high side.
24. There is no denying the fact that in the present case, rice stocks were stored for a long period, i.e., about 5-7 years. Preservation of the stocks are the duty of the Technical Staff (quality control), and such responsibility cannot be saddled in the manner as done in the present case, upon the petitioner, as the petitioner was only the custodian of the stocks and not directly concerned with the quality control. During the course of hearing, learned counsel for petitioner has handed over the list of duties of the Depot staff of the Food Corporation of India, as issued by the Head Quarter of the Food Corporation of India, 15- 20, Barakhamba lane, New Delhi-110001. The said chart of duties gives in detail the routine work of the Depot staff, which does not include any duty with respect to maintenance or checking of the moisture content of the stored grains. It goes without saying that maintenance or checking of the moisture content of the stored grains involves expertise in the said field and would be duty of experts from the technical department having knowledge and know-how in the said field. Thus, staff having general duties cannot be held responsible for specialized aspect of storage of grains involving maintenance or checking of moisture content.
25. Another important point to be noted is that recommendations were made through monthly inspection report by the Assistant Manager (Quality Control) and inspection notes of the Deputy Manager (Quality Control) for early disposal of the stocks of rice since 1994-1995. However, no action was taken by the respondents in this regard. The stocks were disposed of only in the year 1997-1998 after about 5 to 7 years. The squad inspection report dated 02.03.1995 is relevant in this regard, which is reproduced for ready reference herein below: “SQUAD INSPECTION REPORT
1. Name and designation of Shri. R.K. Sharma, Dy. Inspection officer Manager (QC)FCI, Bulandshahr
2. Date of inspection 2.3.95
3. Depot inspected F.S.D. Kasganj
4. (a) Storage capacity of the Covered Cap Nature Total the Depot. Owned Hired thereof 9160 - 9160MT 4.(b) Commodity wise/Category wise Classifications stocks held in the depot as per latest inspection by the local QC staff COMMODITY C F H TOTAL A B C D TOTAL Wheat - - - Nil - - - - Nil Rice common Raw Boiled 7809 - - 7809 - 7809 - - 7809 Fine Rice Raw Boiled 31 - - 31 - 31 - - 31 X x x x x x 7840 7840 7840 7840
5. Strength of QC staff and adequacy there of as per norms. Sanctioned Inposition ASSTT.
MANAGER (QC) - TECH.ASSTT.GR.I - TECH. ASSTT. GR.II. 1 TECH.ASSTT.GR.III - DUSTING OPERATORS 3+1 Picker
6. Condition of godown with to check birds entrance in specific reference to repairs the she windows, ventilator if any to be carried out:- should be repaired immediately.
20. Date of last, inspection of this depot and the general improvement noticed on QC aspects.
21.
MISCELLANEOUS The visiting officer is required to mention here the list of instructions given by him in the depots inspection for compliance. (1) Brushing on stacks may be carried out regularly. (2) Looze Rice was lying in Tin B shed in mixing position of birds excreta. lt should be cleaned & filled in bags immediately. (3) The godowns should be brushed & cleaned and particular in tin sheds. Cob-webs should be removed from stack & wall (4) In Rice stocks of the year 91-92 encrustration & discolourisation has started. It should be liquidated at an early date. (emphasis provided) (5) The cleaning of sheds is not being done since two months for want of casual labours. AM(D) informed that H.T.C is not supplying the casual labours. The casual labours should engaged either from the risk & cost or from contingency but cleaning should not be suffered at any cost (6) The huge quantity of loose grain was noticed beneath the crates in tin shed. It should be collected & cleaned.
DEPUTY MANAGER (QC) F.C.I, BULANDSHAHR DISTRIBUTION
1. The Senior Regional Manager, FCI, R.O, Lucknow.
2. The Zonal Manager (N) FCI, Z.O, New Delhi
3. The Manager (QC) FCI. Head Office, New Delhi.”
26. It is also pertinent to note here as pointed at by Ld counsel for petitioner, that all the works in the food storage depot are done under the supervision of Assistant Manager (D) and all works regarding preservation, recording of moisture and maintenance of quality of stocks are done by the technical staff under the supervision of Assistant Manager (Quality Control). All the works with regard to quality control, i.e., recording of moisture, ascertaining the quality of stocks and preservation are done by technical assistants under the supervision of Assistant Manager (Quality Control). Hence, it is clear that petitioner being only the custodian of the stocks and discharging general duties with respect thereto, cannot be held responsible for the allegations made in the statement of imputation of misconduct.
27. Another aspect which needs consideration is the fact that the order dated 10.08.2004 issued by the Disciplinary Authority does not give specific findings with respect to each imputation against the petitioner herein. This is against the Regulations of the respondent Food Corporation of India, wherein in Regulation 60(d), it has been stipulated that recording of finding on each imputation of misconduct or misbehaviour is mandatory before imposing any of the penalties (minor) specified in clauses (i) to (iv) of Regulation 54. The relevant Regulation 60(d) of the Regulations is reproduced as below:- “FOOD CORPORATION OF INDIA (STAFF) REGULATION, 1971
60. Procedure for imposing minor penalties: (1) Subject to the provisions of Sub-Regulation 59, no order imposing on an employee any of the penalties specified in clauses (i) to (iv) of Regulation 54 shall be made except after: (a)......... (b)......... (c)..........
(d) recording a finding on each imputation of misconduct or misbehaviour............”
28. Similarly, the Appellate Authority while rejecting the appeal did not consider the import of Regulation 72(a), as per which the Appellate Authority is enjoined to consider whether the procedure laid down in the Regulations has been complied with or not. Thus, the Appellate Authority had to consider the fact that the Disciplinary Authority has failed to return a finding on each of the imputations as levied against the petitioner herein.
29. Another fact which is germane to the adjudication in the present proceedings is that another memorandum dated 13.04.2004 was issued against the petitioner herein with same allegation of storage loss during the same period, but for different stock of rice. The storage loss in the subsequent memorandum dated 13.04.2004 was shown to the extent of 4.98%. The memorandum dated 13.04.2004 containing the statement of imputation of misconduct against the petitioner herein is reproduced as below:- “ STATEMENT OF IMPUTATION OF MISCONDUCT OR MISBEHAVIOUR ON THE BASIS OF WHICH ACTION IS PROPOSED TO BE TAKEN AGAINST Shri. Tej Singh AG. II (D)/PP Shri. Tej Singh Asst. Grade-II (Depot) while posted and functioning as such at FSD Kashganj, Etah during the period February 96 to March 98. failed to maintain absolute intergrity and devotion to duty and committed following irregularities:- Shri. Tej Singh Asst. Grade-II (Depot) was entrusted with the work of storage and maintenance of foodgrains in the following cases of storage loss of Rice has been reported in respect of FSD Kashganj for the month indicated below: Commo Stock Storage Percen Moisture at Period of Value Dity No. Loss tage the time of Storage of loses @Rs. 572/-