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Uttarakhand High Court · body

2012 DIGILAW 686 (UTT)

Neetu Singh v. State of U. P.

2012-11-07

K.J.SENGUPTA

body2012
Judgment Kalyan Jyoti Sengupta, J. By this writ petition, the petitioner has challenged the impugned orders dated 9th March, 2005 and 17th May, 2005, annexure 5 and 7 to the writ petition. By the first order dated 9th March, 2005, the petitioner has been fastened with liability to pay Rs.1,79,065.50. 2. Short fact of the case is that at night of 11th and 12th March, 2002, a theft was committed by certain persons in the Store of Kandriya Bhandar Khand-III at Ramganga Bandh Mandal, Kalagarh. At the relevant time when theft was committed, the petitioner was Incharge of Store and was discharging his duty as a Store Keeper. Police case was started. The respondents authority decided to hold an inquiry to ascertain the quantum of loss which might have occurred because of theft of store materials. After holding inquiry, the impugned order as mentioned in the letter dated 9th March, 2005 was passed quantifying the amount of loss and damages alleged to have been suffered by the department on account of theft. On 16th February, 2005, a notice was issued asking the petitioner to show cause within 15 days from the date of receipt of the show cause notice as to why liability should not be fixed upon him for this loss. This show cause notice was replied within time by the petitioner. However, the impugned order was passed on 9th March, 2005 fastening the liability of payment Rs.1,79,065/- out of quantified loss of Rs. 1,98,961.50. The petitioner has said that without considering his reply aforesaid order was passed and this factum of non-consideration is admitted in the counter affidavit with a rider that the reply was not received within time. 3. Sri Subhash Upadhayaya, the learned counsel for the petitioner contends that this order has been passed in violation of principle of natural justice, admittedly, without considering the explanation of the petitioner the aforesaid order was passed. Moreover, there is no provision of law under which alleged loss can be quantified and can be put forward to make demand for payment like a decree of a civil court. 4. Learned counsel appearing for the State of U.P. submitted that the occurrence of theft of store material has been admitted and it is the primary duty of the Store Keeper to take all precautionary measures for the safety and security of goods kept in his custody. 4. Learned counsel appearing for the State of U.P. submitted that the occurrence of theft of store material has been admitted and it is the primary duty of the Store Keeper to take all precautionary measures for the safety and security of goods kept in his custody. The learned counsel referred to Para 194 of the Financial Hand Book Part VI wherein it is mentioned that it is the duty of the Store Keeper to take custody, preservation and issue of the stores under his charge. The petitioner neglected to do so, as such, he is liable for the loss suffered by the Government. Since reply to show cause notice was not submitted within time, as such, there was no occasion to consider the same. Accordingly, the said order was passed asking him to pay proportionate amount. 5. Having heard the contention of the learned counsel for the parties, I find that it is admitted position as it is reflected from paragraph 11 of the counter affidavit that the order was passed ex parte on 9th March, 2005. The plea taken for passing ex parte order is not substantiated by any document rather it has been denied. It appears that reply to show cause was submitted within time through the departmental procedure and the impugned order was passed without considering the explanation offered by the petitioner and on that ground alone this order is liable to be set aside. But, while examining the entire material as a whole, I do not find any justification under law to pass such order. The Government cannot act like individual litigant, as it likes. It has to act within the four corners of law. Nothing has been placed before me authorizing the department to take this sort of action. Moreover, while reading the final order of quantification, I do not find on what basis this quantification was made. There is no iota of proof of the value of the materials alleged to have been stolen. On that ground also, the impugned order cannot be sustained. Therefore, I allow the writ petition and set aside the orders. 6. Moreover, while reading the final order of quantification, I do not find on what basis this quantification was made. There is no iota of proof of the value of the materials alleged to have been stolen. On that ground also, the impugned order cannot be sustained. Therefore, I allow the writ petition and set aside the orders. 6. However, I make it clear it would be open for the State of U.P. to recover the alleged loss suffered by the Government on account of negligence on the part of the petitioner in accordance with law and this order will not prevent and prejudice the department from doing so. 7. There will be no order as to costs.