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2017 DIGILAW 3022 (ALL)

MEHARBAN SINGH v. STATE OF U. P.

2017-12-21

IRSHAD ALI, PANKAJ MITHAL

body2017
JUDGMENT Hon’ble Irshad Ali, J.—Heard learned counsel for the petitioner Sri Rajesh Mishra and Sri Shiv Nath Singh, learned counsel for the respondents. 2. The present writ petition has been filed challenging the orders dated 12.1.2016 and 29.1.2016 passed by the Managing Director, U.P. State Warehousing Corporation. vide order dated 12.1.2016, penalty of recovery of Rs. 521220.59/- was imposed upon the petitioner and vide order dated 29.1.2016, the petitioner was dismissed from the service and recovery of Rs. 2795665.23/- has been directed. 3. The petitioner was granted appointment in the Warehousing Corporation on the post of Godown In-charge in the year 1979 at District Bereilly. Subsequently, he was posted as Warehouse Superintendent Warehouse Central Nagla in District Bareilly. The petitioner was issued chargesheet on 10.8.2015 by the Inquiry Officer levelling charges that while posting at Jamka, District Shahjahanpur in the year 2008-2009 and 2009-2010, shortfall of rice occurred. Thereafter another chargesheet was issued no 17.11.2014. 4. The chargesheet dated 10.8.2015 was in regard to the shortfall of foodgrains while posted at Center Bari Nagla and the chargesheet dated 17.11.2014 was issued in regard to the shortfall of foodgrains at Center Jamka in District Shahjahanpur. 5. The petitioner submitted reply to the charges levelled against him on 2.12.2014 and after conclusion of inquiry, the inquiry officer submitted its report on 9.12.2014 and the charges were found proved against the petitioner. The disciplinary authority issued show-cause notice vide letter dated 20.12.2014 enclosing copy of the inquiry report directing the petitioner to submit his reply on 29.12.2014. The proceedings referred hereinabove were concluded in regard to the chargesheet dated 17.11.2014. 6. In regard to the chargesheet dated 10.8.2015, the petitioner submitted his reply on 24.8.2015 and thereafter the inquiry officer submitted its report on 31.10.2015. The managing director issued show-cause notice dated 26.11.2015 and 4.1.2016 calling explanation from the petitioner within 15 days of receipt of the show-cause notice that why Rs. 521220.95/- and Rs. 2795665.23/- may not be recovered from the petitioner. The petitioner in response thereto, submitted his reply on 4.12.2015 and 18.1.2016 respectively denying the charges levelled against him. 7. The managing director after considering the inquiry reports and replies submitted by the petitioner passed orders on 12.1.2016 and 29.1.2016 by means of which, services of the petitioner have been dismissed and order of recovery of Rs. 2795665.23/- has been issued against the petitioner. 8. 7. The managing director after considering the inquiry reports and replies submitted by the petitioner passed orders on 12.1.2016 and 29.1.2016 by means of which, services of the petitioner have been dismissed and order of recovery of Rs. 2795665.23/- has been issued against the petitioner. 8. Challenging the aforesaid two orders, the petitioner has made four submissions: (1) The Government order dated 16.8.2003 which has been relied upon by the disciplinary authority while passing the impugned orders has been set aside by the Division Bench of this Court. Thus, reliance placed by the managing director on G.O. dated 16.8.2003 while passing the impugned order is not justifiable in law; (2) In response to the chargesheet, reply submitted by the petitioner has not been considered by the managing director while passing the impugned order; (3) the shortage occurred in the godown of foodgrains was due to moisture and not due to negligence of the petitioner. The godown was not fit for storage of foodgrains; and (4) the last argument advanced by the petitioner is that after setting aside the Government Order dated 16.8.2003 till the date of passing of impugned orders, fresh norms have not come into force. The inquiry proceedings and imugned orders due to non consideration of aforesaid aspects are not tenable in law. 9. While making the aforesaid submissions, learned counsel for the petitioner further pointed out that the inquiry officer did not fix date, time and place for conducting the inquiry. As such, the petitioner could not cross-examine the witnesses relied upon or adduce evidence in rebuttal to the documents relied upon in regard to the charges levelled against him. The inquiry proceedings, therefore, stand vitiate in law due to non compliance of principles of natural justice and the orders passed on its basis are not sustainable in law. 10. On the other hand, learned counsel for the respondents raised an objection that the petitioner has an alternate remedy under Regulation 22 of the U.P. State Warehousing Corporation Staff Regulations. In view of that, the writ petition is not maintainable on the ground of availability of alternative remedy. He further submits that the Managing Director while passing the impugned orders has not committed any illegality and the impugned orders do not vitiate in law. In view of that, the writ petition is not maintainable on the ground of availability of alternative remedy. He further submits that the Managing Director while passing the impugned orders has not committed any illegality and the impugned orders do not vitiate in law. The orders have been passed in accordance with the G.O. issued in the year 2009 and not in accordance with the G.O. dated 16.8.2003. 11. After the respective arguments advanced by the parties, on a bare perusal of the inquiry report, it is revealed that at no point of time, the inquiry officer fixed date, time and place for examination of the witnesses by issuing notice to the petitioner. The contention of the petitioner that the inquiry officer without providing opportunity to cross-examine the witnesses and providing personal hearing has proceeded to submit the inquiry report appears to be correct. By bare perusal of Regulation 16 (3), it is evident on the face of it that before awarding punishment as specified in sub para 1 (a) (1) (b) or (1) (c) of Regulation 16, the employee is to be provided opportunity for tendering an explanation in writing and cross-examine the witnesses against him although the petitioner has not pleaded in the writ petition in regard to the violation of the aforesaid Regulations. As such, the responsibility of the Court to examine the same plays a very important role to do justice. On the perusal of the inquiry report, it is apparent on the face of it that at no point of time, as per the aforesaid Regulations, date, time and place were fixed for cross-examination of the witnesses. Thus, the rules of principles of natural justice have been violated by the respondents. Hon’ble Supreme Court in the case of ‘Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and others’ (1998) 8 SCC 1 , has held that if the order under challenge is without jurisdiction and violative of rule of natural justice, the alternative remedy is not bar. In view of that, the arguments advanced by the respondents on availability of alternative remedy is not acceptable. 12. In view of the observations made above, we hold that due to non compliance of the provisions contained under Regulation 16 of U.P. Warehousing Corporation, the impugned orders stand vitiated in law and is not sustainable. 13. In view of that, the arguments advanced by the respondents on availability of alternative remedy is not acceptable. 12. In view of the observations made above, we hold that due to non compliance of the provisions contained under Regulation 16 of U.P. Warehousing Corporation, the impugned orders stand vitiated in law and is not sustainable. 13. Learned counsel for the petitioner during the course of arguments, drew the attention of this Court at Annexure 19 which is a report of the respondent department wherein in column No. 29 it has been stated that the loss of foodgrains is due to natural reasons like driage of moisture content, longer storage period etc. and not due to theft, fraud or technical fault on the part of any official. While passing the impugned orders, it was incumbent upon the disciplinary authority to take notice the aforesaid report. On bare perusal of the impugned order and inquiry report it is crystal clear that at no point of time the said report was taken into consideration. Due to non consideration of the report of the department itself, the impugned order vitiates in law. 14. In view of the above, on the two aforesaid grounds alone, the orders dated 12.1.2016 and 29.1.2016 are not sustainable and are liable to be set aside and are hereby set aside. 15. The writ petition succeeds and is allowed with the liberty to the respondents to initiate fresh disciplinary proceedings against the petitioner in accordance with the law and the Regulations applicable to the department.