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2010 DIGILAW 272 (CHH)

Ishwar Prasad v. State of C. G.

2010-11-22

SATISH K.AGNIHOTRI

body2010
ORDER Satish K. Agnihotri, J. 1. By this petition, the Petitioner seeks quashing of the order dated 15-6-2009 (Annexure P/l) passed by the Collector, Janjgir-Champa, by which the Petitioner was dismissed from the service and also directed to initiate recovery proceedings as well as criminal proceedings against the Petitioner. 2. The facts, in nutshell, as projected by the Petitioner for proper adjudication of the case, are that the Petitioner was working as sales man in the Fair Price Shop (for short "the FPS") of the Respondent Sewa Sahakari Samiti Maryadit, Rahod (Respondent No. 3) on daily wages basis. The said FPS was operated and run by Sewa Sahakari Samiti Maryadit and Jamuna Prasad Yadaw (Respondent No. 4). According to the Petitioner, in response to one show cause notice, the Respondent No. 4 filed reply by putting the forged signature of the Petitioner and contested the case. On 27-04-2009 (Annexure P/2), the Sub Divisional Officer, Pamgarh suspended the allotment order of the FPS and attached the same with the Sewa Sahakari Samiti, Mehandi. 3. Being aggrieved by the order dated 27-04-2009, the Respondents No. 3 & 4 filed two separate appeals before the Collector raising the ground that the order dated 27-04-2009 was passed without affording proper opportunity of hearing and without recording any evidence. In the said appeal, the Petitioner herein was impleaded as party/Respondent. The Collector without issuing any notice to the Petitioner, passed the order dated 15-06-2009 directing the authorities concerned to remove the Petitioner from the service and to initiate recovery proceedings in lieu of shortage of stock of essential commodities in FPS and also directed to initiate criminal proceedings against the Petitioner. Thus, this petition. 4. Ms. Singhai, learned Counsel appearing for the Petitioner, would submit that the order passed by the Collector is illegal, arbitrary and against the principles of natural justice, as the Collector has passed the order without affording proper opportunity of hearing to the Petitioner in spite of the fact that the Petitioner was party/Respondent in the appeals filed by the Respondents No. 3&4. 5. Ms. Singhai would further submit that the Petitioner was not involved in any financial transactions. In fact, the Respondent No. 4 was the salesman of the FPS and he is maintaining the accounts, stock register, etc. The Petitioner was made scapegoat to the illegalities committed by the Respondents No. 3 & 4. 5. Ms. Singhai would further submit that the Petitioner was not involved in any financial transactions. In fact, the Respondent No. 4 was the salesman of the FPS and he is maintaining the accounts, stock register, etc. The Petitioner was made scapegoat to the illegalities committed by the Respondents No. 3 & 4. Thus, the impugned order may be quashed. 6. On the other hand, Shri Singh, learned Counsel appearing for the Respondents No. 3 & 4, would submit that the Petitioner without availing the alternative remedy available under the provisions of Section 55(2) of the Cooperative Societies Act, 1960 (for short "the Act, 1960") has approached this Court, thus this petition is not maintainable. Even otherwise, after appreciating the facts and circumstance of the case in its letter and spirit, the Collector has rightly passed the order. Since November, 2005 the responsibility of FPS was given to the Petitioner on the ground that the Respondent No. 4 sustained fracture of his leg. Thus, the Petitioner is responsible for any irregularities. 7. Shri Bhaduri, learned Counsel appearing for the State supported the impugned order passed by the Respondent Collector. 8. I have heard learned Counsel appearing for the parties, perused the pleadings and the documents appended thereto. 9. Case of the Petitioner is that he was daily wages worker of the Respondent No. 3 Samiti. The shop in question was not allotted to him and, as he was simply an employee of the Respondent No. 3 Samiti. The Petitioner has raised a specific ground that the Respondent No. 4 has made false signature of the Petitioner and contested the case before the Sub Divisional Officer. 10. Since the shop in question was not allotted to the Petitioner and the Petitioner was an employee of the Respondent No. 3 Samiti, the order of the Collector to the extent the order dated 27-4-2009 passed by the Sub Divisional Officer whereunder the FPS allotted to the Respondent No. 3 Samiti was suspended was allowed subject to the condition of termination of the Petitioner from the service of the Respondent No. 3 Samiti, recover all financial losses from the Petitioner and initiate criminal proceedings against him is bad in law. 11. 11. In the impugned order, it is nowhere discussed and referred that how an employee becomes responsible for the irregularities and the illegalities committed by the Respondent No. 3 Samiti managed by the Respondent No. 4. The Collector has not established and proved the liability or vicarious liability of the Petitioner before passing the impugned order of termination, recovery of financial loss and initiation of criminal proceedings, which was not questioned before the Sub Divisional Officer. 12. The Collector has also not cared to see asto whether the order passed by the Sub Divisional Officer was based on a complaint that the Petitioner was directly responsible for any loss caused to the Respondent No. 3 Samiti, if any, it was for the employer to initiate action against its employee not for the Collector in appeal. It is no one's case that the Petitioner was either Government employee or he was appointed by the Respondent No. 3 Samiti with the consent and approval of the Collector and the Sub Divisional Officer. 13. The impugned order without adverting to the foundation of the case where the Collector has to establish the basic facts was passed to the extent of removal from service, recovery of financial loss and initiate criminal proceedings against the Petitioner, which was not the subject matter before the Collector. 14. The Collector has exceeded his jurisdiction, it appears from the impugned order that no opportunity of hearing was afforded to the Petitioner before passing the impugned order. The Petitioner is entitled to proper opportunity of hearing to put forward his case to the effect that to what extent he was liable to the alleged illegalities or irregularities. The Collector, it appears, has hastened to decide the case without foundation and without sufficient materials on record. Even in the appeal notice was not issued to the Petitioner, as it is nowhere discussed about the issuance of notice and response of the Petitioner in the impugned order. 15. Clause 11 of the Chhattisgarh Public Distribution System (Control) Order, 2004 (for short "the Order, 2004") clearly provides for the responsibilities of the fair price shopkeeper. Clause 11 of the Order, 2004 reads as under: 11. Responsibilities of Fair Price Shopkeeper.: (1) Fair Price Shopkeeper shall receive essential commodities from those agencies, which were authorized by the Collector. 15. Clause 11 of the Chhattisgarh Public Distribution System (Control) Order, 2004 (for short "the Order, 2004") clearly provides for the responsibilities of the fair price shopkeeper. Clause 11 of the Order, 2004 reads as under: 11. Responsibilities of Fair Price Shopkeeper.: (1) Fair Price Shopkeeper shall receive essential commodities from those agencies, which were authorized by the Collector. (2) The responsibly of Fair Price Shopkeeper to make available the whole allotment of essential commodities after taking delivery within the first week of the month. (3) Fair Price Shopkeeper shall be responsible for making essential entries in ration cards. (4) After receiving essential commodities by Shopkeeper, she/he shall give the description of essential commodities in written to the concerned Gram Panchayat or urban local bodies and vigilance committee, who will display it on their notice board. (5) Fair Price Shopkeeper shall sell essential commodities in such quantities and at the retail issue price as may be specified from time to time by the State Government to those consumers whose ration cards have been registered at her/his shop. Fair Price Shopkeeper shall not sell any essential commodities without ration card. (6) Fair Price Shopkeeper shall sell essential commodities to ration card holders or any other member having their name in the ration card. (7) The commission at such rate as specified from time to time by the State Government shall be payable to Fair Price Shopkeeper. (8) The agencies, who run Fair Price Shops and supplying agency (Food Corporation of India, Chhatisgarh State Civil Supplies Corporation Limited, lead societies and wholesale dealer of kerosene) shall ensure the availability of essential commodities to the FPS within the first week of the month for which allocation is made. (9) Fair Price Shopkeeper shall display the samples of food grains being supplied through the Fair Price Shop. 16. From bare perusal of Clause 11 of the Order 2004, it is not found anywhere that for illegalities or irregularities committed by the fair price shopkeeper or not performing the responsibilities in accordance with the provisos of the Order, 2004 the servant of the FPS would be liable and responsible. Thus, the order passed by the Collector is also contrary to the provisions of the Order, 2004. 17. The question of suspension of allotment of FPS of the Respondent No. 3 Samiti was before the Sub Divisional Officer. Thus, the order passed by the Collector is also contrary to the provisions of the Order, 2004. 17. The question of suspension of allotment of FPS of the Respondent No. 3 Samiti was before the Sub Divisional Officer. The Collector exceeded the jurisdiction and pass further order not against the Respondent No. 3 Samiti, which was the allottee of the FPS, but against the employee, who, at the most, may be held as an agent of the Samiti not more than that. Thus, the impugned order passed by the Collector is not at all sustainable in the eyes of law and the same deserves to be quashed. 18. For the reasons and analysis mentioned hereinabove, the impugned order dated 15-6-2009 (Annexure - P/l) passed by the Collector, Janjgir-Champa is quashed. The order dated 27-4-2009 (Annexure - P/2) passed by the Sub Divisional Officer (Revenue), Pamgarh, District Janjgir-Champa is restored. 19. In the result, the writ petition is allowed with costs, quantified to be at Rs. 5,000/- payable by the Respondents No. 3 & 4 to the Petitioner.