K. Kalaimani v. Tamil Nadu Civil Supplies Corporation Rep. by its Chairman Managing Director Chennai
2013-07-05
M.VENUGOPAL
body2013
DigiLaw.ai
Judgment : 1. The Petitioner has preferred the present Writ of Mandamus praying for passing of an order by this Court in forbearing the respondents from initiating the Recovery proceedings or making any recoveries from the salaries of the petitioners in respect of the Rice Stocks which were classified as Non-issuable by the second respondent pursuant to the letter of the first respondent by his proceedings D.O. No. T3/71161/2001 dated 13.9.2001. 2. According to the Petitioners, the essential commodities procured by the Respondents / Tamil Nadu Civil Supplies Corporation Limited [for short, 'Respondent / Corporation'] were being stored in several Godowns of the Respondent / Corporation spanning all over the State. The Godowns and other places of storage of the essential articles were not up to the standard prescribed by the Government of India and there are several short comings in the storage and upkeepment of the essential articles which were within the knowledge of the Respondent / Corporation. 3. The stand of the Petitioners is that the essential commodities while storage or in transit were lost due to inadequate infrastructure facilities, delay in movement of the procured commodities from one place to another, delay in taking the administrative decisions as regards the disposal of procured commodities, frequent change of policies by the successive Governments both in regard to the method of procurement and in the manner of disposal and damage to the commodities were also caused by rats and other insects, etc. The loss of commodities due to the aforesaid reasons were called as 'Storage Loss in the Respondent / Corporation. 4. The Respondent / Corporation prescribed norms for calculating Storage Loss in respect of Fair Average Quality (FAQ) Rice and the same was been communicated to all the Regional Heads through a Circular H.O. Ref. No. U1/58382/81-18 dated 10.04.1984 as modified from time to time. As per the said Circular and another Circular dated 07.02.1985, the permitted storage loss for each commodity was fixed and the Regional Managers were empowered to regularise such losses upto some extent and more than that a proposal for the same was to be submitted to the Head Office for approval and if the loss exceeded the limits prescribed in the Circular, then the Regional Heads like the Second Respondent were empowered to initiate consequential Recovery Proceedings against such employees who were ultimately found responsible for such huge storage losses. 5.
5. As per existing instructions directed to be followed by all the Godowns incharge, the goods / stocks procured shall be disposed / released on the principle of 'First Come First Go'. However, contrary to the said principle, the Respondent Corporation always directed the concerned officials to dispose / release the specific stocks to specific persons or Agencies under the Public Distribution System Network or to other purchasing Agencies. Indeed, due to the Procurement Policy adopted by the then Government in office, the paddy and rice were procured from the farmers with high moisture content exceeding the FAQ standard and these stocks were ordered to be kept in the Godowns itself without releasing the same to the requisite authorities. These stocks were kept idle for over several months and got discoloured and further, those stocks were declared to be not fit for distribution under Public Distribution System. Later, the Respondent / Corporation directed the officials concerned to identify those stocks and separate the same from other stocks. 6. Some stocks were identified and declared by the Regional Committee as of 'Non-issuable Rice' in respect of the Godowns coming under the control of the Second Respondent. The Regional Committee at the time of inspection and declaring so, would weigh the stocks, separate them from other stacks, seal them by cover and tightly tie them with the help of Jute rope. The members of the Regional Committee were required to visit each Godown where those 'Non-issuable Rice' were kept and they would verify the same and note down the entries in a Register then and there. 7. The norms fixed by the Respondent / Corporation for storage loss as per Circular H.O. Ref. 10823/85/R1 dated 07.02.1985 and modified from time to time, was valid only upto one year from the date of procurement and the loss beyond that period was not defined. Subsequent to such declaration as 'Non Issuable Rice', the Respondent / Corporation used to conduct Tenders calling upon the tenderers to participate in the bidding process. The successful bidder, after executing necessary documents in favour of the Respondent / Corporation and on payment of cost of goods, would be entitled to release of the orders and such stocks would be released to the successful Tenderers in the presence of the members of the Regional Committee.
The successful bidder, after executing necessary documents in favour of the Respondent / Corporation and on payment of cost of goods, would be entitled to release of the orders and such stocks would be released to the successful Tenderers in the presence of the members of the Regional Committee. The stocks were subsequently put to Tender – cum – Auction Sale held on 23.10.2001 by the Respondent / Corporation and the same was awarded to the successful Tenderers. 8. While that being the factual situation, to the Petitioners' shock and dismay, the Second Respondent issued Show Cause Notices to the Petitioners and others with a view to recover the alleged storage loss in respect of the commodities which were classified as 'Non-issuable Rice' in the year 2001 from the Petitioners. The Recovery Proceedings were sought to be initiated on the Petitioners by proportionately dividing the purported storage loss amount among the concerned individuals who worked in the particular Godown during the relevant point of time. Although the Petitioners could project their explanation to the Show Cause Notices to the Second Respondent, the Respondent / Corporation would not consider the same as revealed from the show cause notices because of the fact that the recovery proceedings were initiated pursuant to the instructions from Head Office. As such, no useful purpose will be served in redressing their grievances with the Respondent / Corporation. 9. The Learned Counsel for the Petitioners urges before this Court that the letter of the First Respondent in Proceedings D.O. No. T3/71161/2001 dated 13.9.2001 is illegal because of the fact that it is not the fault of the Petitioners in procuring the poor quality of Rice from the farmers and only because of the instructions received for such procurement, the Petitioners and other employees of the Respondent / Corporation procured the Rice with high moisture content and they were transported and stored in various Godowns of the Respondent / Corporation. That apart, the Respondent / Corporation should have taken steps for early disposal of such stocks. Therefore, the recovery for the losses said to have occurred to such stocks could not be shifted on the shoulders of the Petitioners. 10.
That apart, the Respondent / Corporation should have taken steps for early disposal of such stocks. Therefore, the recovery for the losses said to have occurred to such stocks could not be shifted on the shoulders of the Petitioners. 10. Lastly, it is submitted on behalf of the Petitioners that the alleged excess storage loss occurred due to long storage of Rice in the Godowns of the Respondent / Corporation and formation of fumigation and heavy loose bran and the said fault should not be shifted to the shoulders of the Petitioners. 11. In response, the Learned Standing Counsel for the Respondent / Corporation submits that the Respondent / Corporation had allowed certain norms for rice and a Circular has been issued in Rc.UI/58382/81-18 dated 10.04.1984 by the Head Office. Also, it is brought to the notice of this Court on behalf of the Respondent / Corporation that the Regional Heads were empowered to regularise the quantity of shortage to some extent and more than the quantity, Head Office should be addressed for regularisation / recovery. Notwithstanding the fact that recovery was initiated only in respect of non-FAQ in consultation with the Committee and obtained the confirmation from that date from the Head Office in Order R1/92980/03 dated 07.10.2003, it reveals that storage loss was allowed in norms as far as rice was concerned and it was given effect to from the Head Office. 12. Advancing his arguments, the Learned Counsel for the Respondent / Corporation contends that the Respondent / Corporation never asked for an excess quantity or shortage quantity either by the riots or FCI receipt points. If any excess noticed at the time of inspections, an excess was taken automatically into account. Also that, it is the discretion of the Management to take final decision based on the nature of explanation and the reason for not taking of the explanation would be discussed in recovery proceedings. 13. The Learned Counsel for the Respondent / Corporation strenuously contends that the Respondent / Corporation officials have issued recovery orders for the purchase of rice in non-FAQ standard.
13. The Learned Counsel for the Respondent / Corporation strenuously contends that the Respondent / Corporation officials have issued recovery orders for the purchase of rice in non-FAQ standard. At this stage, the Learned Counsel for the Respondent / Corporation cites the order of this Court dated 18.12.2009 in W.P.No.25480 of 2006 between R.Ananthan and another vs. Tamil Nadu Civil Supplies Croporation Ltd. and another whereby and whereunder in paragraphs 4 to 7, it is observed and laid down as follows: "4. I have heard the counsel appearing for the petitioners as well as the respondent Corporation and perused the materials placed before me, including the counter affidavit filed by the respondents. 5. The impugned order sought to be challenged in this writ petition is admittedly a correspondence between the first and the second respondents regarding the stock of rice. Though the learned counsel for the petitioners has stated that in view of the impugned letter recovery has been made, a perusal of the counter affidavit would show that recovery order was passed on 29.5.2006 and recovery from salary was effected from the month of June and the salary bills produced by the petitioners themselves would also show that for the month of June, 2006, recovery has been made. 6. If the petitioners are really aggrieved against the order of recovery dated 29.5.2006, they should have challenged the said order, but, on the other hand, they had chosen to challenge the letter of correspondence between the Department, which cannot be entertained. 7. Having regard to all these aspects, I do not find any merit in the writ petition and it is stated to be misconceived and is liable to be dismissed...." 14. By way of reply, the Learned Counsel for the Petitioners brings it to the notice of this Court that on 18.01.2013 in W.P. No. 15578 of 2005 between S. Kasi and 4 others vs. Tamil Nadu Civil Supplies Corporation and another wherein it is, inter alia, observed and held as under: ".... When the matter is taken up, learned counsel for the petitioners submitted that as per the stand of the respondents in the counter affidavit filed, individual recovery orders will be passed by the Department and in that event, the petitioners may be given liberty to challenge the same. 2. This request of the learned counselfor the petitioner seems to be very reasonable. 3.
2. This request of the learned counselfor the petitioner seems to be very reasonable. 3. Consequently, the writ petition is disposed of giving liberty to the petitioners to challenge the orders of recovery whenever they are passed. No costs. Connected W.P.M.P. is closed." 15. As far as the present case is concerned, the impugned order dated 13.9.2001 of the Chairman and Managing Director of the Respondent / Corporation is only a Demi-Official Letter addressed to one Thiru. T.V.Rajamani, Regional Manager, Tamil Nadu Civil Supplies Corporation Ltd., Nagai. A perusal of the contents of the said communication latently and patently indicates that it is purely an internal correspondence between the higher up and the subordinate / other official. To put it succinctly, the impugned order dated 13.9.2001 is only an internal correspondence addressed by one superior official to another. In law, the internal correspondence either addressed by an official or exchanged between the officials cannot be assailed and that too, in writ jurisdiction under Article 226 of the Constitution of India, in the considered opinion of this Court. Viewed in that perspective, the Writ Petition fails. 16. In the result, the Writ Petition is dismissed leaving the parties to bear their own costs. Consequently, connected Miscellaneous Petition is closed. Since it is brought to the notice of this Court that the Respondent / Corporation officials have issued recovery orders to the affected persons concerned, this Court grants liberty to the Petitioners, if they are affected by the recovery orders, to challenge the said recovery orders in the manner known to law and in accordance with law.