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2001 DIGILAW 650 (ALL)

NARENDRA KUMAR JAIN v. FOOD CORPORATION OF INDIA

2001-07-09

D.R.CHAUDHARY, S.R.SINGH

body2001
S. R. SINGH, J. ( 1 ) THIS petition has a chequered history. The petitioner initially joined as Godown Clerk in the ministry of Food and Agriculture, Department of Food and was subsequently absorbed in Food corporation of India in which he earned promotion as Assistant Manager (Depot) and came to be posted at Etah on 12. 7. 1982. On 25. 7. 1984 he joined as Assistant Manager (Depot) on G. A. P. storage at Airstrip, Lalitpur having storage capacity of one lakh metric tone under the District manager, Food Corporation of India. Jhansi. On 1. 10. 1985 he proceeded on leave on receipt of a message about serious condition of his mother who died on 4. 10. 1985 at Tundla (Agra) and was on leave up to 30. 10. 1985 and joined his duties on 31. 10. 1985 after expiry of the leave period. It appears that there was heavy rains during October, 1985 in which the wheat stored at the airstrip, Lalitpur was damaged resulting in huge financial losses to the Corporation. The petitioner was placed under suspension vide order dated 12. 4. 1986 and on 10. 4. 1987 he was served with the charge sheet dated 3. 3. 1987. The charges against the petitioner were as under : "shri N. K. Jain. Assistant Manager (Depot) while posted and functioning as such at Airstrip, lalitpur during 1984-85 failed to maintain absolute integrity, devotion to duty and to serve the corporation honestly and sincerely inasmuch as he failed to supervise depot operations, i. e. . maintenance of stocks account, gunny and dead stock account, submission of monthly stock accounts and other periodical returns, protection of stocks from losses and damages during storage and in preservation of the stocks. Due to his criminal negligency and failures, the corporation has suffered huge financial losses on account of storage loss/shortages and damages to the wheat stock/gunny stored at Airstrip, Lalitpur. The above acts and failures has also caused damages to the image of the Corporation in public and loss of national property. Thus, contravened Regulations 31 and 32 of the Food Corporation of India (Staff ). Regulations, 1971. " ( 2 ) THE petitioner denied the charges and pleaded that the charges were vague, indefinite and factually incorrect : The basic requirements were not fulfilled in relation to posting of require number of staff and entrusting of responsibilities ; the essential facilities. Thus, contravened Regulations 31 and 32 of the Food Corporation of India (Staff ). Regulations, 1971. " ( 2 ) THE petitioner denied the charges and pleaded that the charges were vague, indefinite and factually incorrect : The basic requirements were not fulfilled in relation to posting of require number of staff and entrusting of responsibilities ; the essential facilities. i. e. , office accommodation, steps for keeping dead articles and other amenities were not at all provided to the petitioner and these shortcomings vitally affected day-to-day work ; gunnies, ropes, nets and covers were not supplied at the needy hours rather all these accessories were arranged when loss to the foodgrains had already occurred and that the stock was arbitrarily shown under free sale scheme and responsibility of watch and ward was not determined. The charged officer (C. O.), i. e. , the petitioner demanded certain documents on a prescribed proforma submitted to the enquiry officer with a view to enabling him to prepare proper defence. Some of the documents demanded by him were not supplied and the enquiry officer submitted a report dated 31. 12. 1987 holding that "proper supervision was not being conducted by C. O. wilfully. " The enquiry officer came to the conclusion that "there is sufficient evidence on the record to show that damages were caused due to stacks left fully uncovered/partially covered. Although sufficient polythene covers were available at Airstrip. Lalitpur. As per job description, it was the duty of the C. O. to ensure that covers were properly mounted on the stacks and laced after the days operation. " In the ultimate conclusion, the enquiry officer held that "although there were lapses on the part of the supervisory officer also but with regard to charges under Article 1 against the C. O. without repeating facts and analysis are proved. " Relying upon the report of the enquiry officer, the punishing authority dismissed the petitioner from service vide order dated 29. 9. 1988. A copy of the order dated 29. 9. 1988 along with enquiry report dated 31. 12. 1987 was served upon the petitioner on 15. 10. 1988. The petitioner preferred an appeal which came to be dismissed vide order dated 16. 3. 1989. The writ petition was filed challenging the orders aforesaid. By judgment dated 24. 2. 1992, this Court allowed the writ petition and quashed the impugned orders dated 29. 12. 1987 was served upon the petitioner on 15. 10. 1988. The petitioner preferred an appeal which came to be dismissed vide order dated 16. 3. 1989. The writ petition was filed challenging the orders aforesaid. By judgment dated 24. 2. 1992, this Court allowed the writ petition and quashed the impugned orders dated 29. 9. 1988 and 16. 3. 1989 with a command super-added to it that the petitioner would be treated as reinstated on the strength of the decision of the Apex Court in Union of India and another v. Mohd. Ramzan Khan. 1991 (1) SCC 588 , inasmuch as copy of the enquiry report was not supplied to the petitioner before passing the order of dismissal of the petitioner from service on the basis of the enquiry report. The Honble Supreme Court, however, set aside the judgment of this Court vide judgment and order dated 17. 3. 1993 in Civil Appeal No. 1350 of 1993 and remitted the matter back to this Court for decision afresh in view of the fact that ratio in Mohd. Ramzans case was operative prospectively and hence there was no scope for the High Court to have applied the same to the facts of the present case. Thereafter the writ petition came to be dismissed vide judgment and order dated 20. 5. 1996. The said judgment, however, came to be set aside by the Apex Court vide judgment and order dated February 3, 1997 on the premise that one of the Honble Judges constituting the Bench "should have reclused himself and not heard the writ petition in view of the fact that he had earlier appeared in the case as a counsel. That is how the matter has again come up before this Court. ( 3 ) WE have had heard Sri R. N. Singh, Senior Advocate for the petitioner and Sri Prabodh Gaur, learned counsel representing the Food Corporation of India and have given our anxious considerations to the facts and circumstances of the case and the submissions made across the bar. ( 4 ) INDISPUTABLE, the petitioner has already attained the age of superannuation. ( 4 ) INDISPUTABLE, the petitioner has already attained the age of superannuation. It has been submitted by Sri R. N. Singh that there has been a grave error in the decision-making process inasmuch as relevant papers demanded by the petitioner in order to defend himself were admittedly not supplied by the enquiry officer and the findings recorded by the enquiry officer to the effect that, "the condition of stacks at the airstrip, Lalitpur was never up to the mark. Airstrip was not being cleaned/loose grain filled property. The restocking was not undertaken by him earlier as the condition of stock reflected by Shri Maithy during his inspection of June, 1985", being based on the report of Sri Maithy, which was never supplied to the petitioner, ought not to have relied upon by the punishing authority without giving an opportunity to the petitioner to have his say on the points. It has also been submitted by Sri R. N. Singh that even according to the enquiry officer "there were lapses on the part of the supervisory officer also". Substantial part of the damage proceeds the submission was caused during the period the petitioner was on sanctioned leave from 3. 10. 1985 to 30. 10. 1985 for which the petitioner cannot be blamed and the extreme penalty of dismissal from service, on the basis of the report of Sri Matthy that the condition of stacks at the airstrip, Lalitpur was never upto to the mark and that restacking was not undertaken by the petitioner, was not justified. Sri Prabodh Gaur, learned counsel appearing for the respondents tried to refute the submission made by Sri R. N. Singh. Senior Advocate and urged that the impugned orders do not suffer from any patent infirmity in the decision making process so as to justify interference by this Court under Article 226 of the Constitution. It cannot be gainsaid that this Court does not exercise the power of superintendence over the respondents under Article 227 of the Constitution but nevertheless the orders impugned herein are open to judicial review under Article 226 of the Constitution. This Court will not hesitate in interfering in case it is found that the orders impugned herein were passed in unjust and unfair manner or, i. e. , there has been a grave error in the decision making process itself. This Court will not hesitate in interfering in case it is found that the orders impugned herein were passed in unjust and unfair manner or, i. e. , there has been a grave error in the decision making process itself. Admittedly, the inspection report of Sri Maithy which has been relied on by the enquiry officer in his report dated 31. 12. 1987 was never supplied to the petitioner. In our opinion, it would be unfair to hold, merely on the basis of the inspection note of Sri Maithy, that "restaking was not undertaken" by the petitioner before he proceeded on sanctioned leave from 3. 10. 1985. That apart, on the finding recorded by the enquiry officer that there had been "lapses on the part of the supervisory officer also", the punishment of dismissal was not justified. It would be quite unfair if the petitioner is awarded extreme penalty of dismissal from service particularly when no action was taken against the supervisory staff and no endeavour was made to fix the corresponding responsibilities and liabilities of the supervisory staff and those of the petitioner. The finding that "proper supervision was not being conducted by the C. O. wilfully" is based on no valid material. Certain degree of negligence and laches might be attributed to the petitioner but it is difficult to hold, in the fact situation of the case, that the negligence was a "wilful" one particularly when the petitioner could not receive desired assistance from his supervisory staff. The damage to the stocks may have been caused due to lack of efficiency on the part of the petitioner and the supervisory staff attached to him but that will not constitute misconduct in the absence of culpability. It is true that if a servant conducts himself in a manner inconsistent with the faithful discharge of duty, that would be a case of misconduct and he may be subjected to disciplinary action but every negligence in performance of duty and a lapse in performance of duty. An "error of judgment in evaluating the developing situation may be negligence in discharge duty but would not constitute misconduct unless the consequences directly attributable to negligence would be such as (o be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high. " Union of India v. J. Ahmed. AIR 1979 SC 1022 . " Union of India v. J. Ahmed. AIR 1979 SC 1022 . In the present case, as noticed above, the petitioner was on leave for about a month and the extent of damage that might have occurred during the leave period has not been ascertained by the enquiry officer. That apart, the petitioner was not solely responsible for the damage to the stock even according to the enquiry officer. In the totality of the facts and circumstances of the case, we are of the considered view that the punishment of extreme penalty of dismissal from service was not warranted. ( 5 ) SRI R. N. Singh, Senior Advocate has very fairly conceded, and we are of the view, that it would meet the ends of justice if the order of punishment of dismissal be converted into one of compulsory retirement. We are conscious of the legal position that normally it is within the domain of the disciplinary authority as to what punishment should be awarded and in case the court finds that punishment in a given case is disproportionate to the misconduct, it should normally leave it to the punishing authority to award appropriate punishment but upon regard being had to the chequered history of the case and the fact that the petitioner has already attained the age of superannuation coupled with the fact that the incident giving rise to this case dates back to the year 1985. we are of the considered view that it would meet the ends of justice if the petitioner be compulsorily retired w. e. f. 29. 9. 1988 not as a measure of punishment but on the ground of being a dead wood. ( 6 ) IN the result, the writ petition succeeds and is allowed. The impugned orders are quashed. The petitioner shall, however, be deemed to have been compulsorily retired not as a measure of punishment but on the ground of being dead wood in accordance with the provisions relating to superannuation and retirement and he shall be entitled to all consequential benefits. .