2023 Supreme(Online)(DEL) 787

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IN THE HIGH COURT OF DELHI AT NEW DELHI

% Released on: 06.01.2023

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W.P.(C) 12941/2009

TEJ SINGH

..... Petitioner

Through:

Mr. Manoranjan Mishra,

Advocate.

(M): 9811564139

Email:

advmamishra@gmail.com

versus

FOOD CORPORATION OF INDIA, AND

OTHER

..... Respondents

Through:

Mr. Om Prakash with

Mr. Vicky Kumar and

Ms. Shivangini Sharma,

Advocates for respondent/FCI.

(M): 9810794902

Email:

om.prkashmv@yahoo.co.in

CORAM:

HON'BLE MS. JUSTICE MINI PUSHKARNA

[Physical Hearing/ Hybrid Hearing]

MINI PUSHKARNA, J. (ORAL):

1.

The present writ petition has been filed against the order of

penalty dated 18.01.2003 passed by the Senior Regional Manager, the

disciplinary authority, thereby imposing penalty of censure on the

petitioner and recovery of Rs.64,756/- from the petitioner. The

petitioner has also sought quashing of the order dated 10.08.2004

passed by the Zonal Manager (North), the Appellate Authority,

thereby rejecting the appeal of the petitioner. The petitioner has also

challenged the order dated 02.03.2009 passed by the Reviewing

Authority.

2.

Petitioner is an employee of the respondent, Food Corporation

of India. He was appointed as Assistant Grade (AG) III (Depot) with

the respondent in the year 1976 and promoted to the post of AG II

(Depot) in the year 1988.

3.

The petitioner was posted as AG II (D) at Kasganj Depot,

pursuant to order dated 07.01.1988. While the petitioner was posted

at Kasganj Depot on 05.10.1994, the charge of rice stocks was handed

over to the petitioner on peripheral counting of bags, on book balance

without any physical weighment from S.M. Haider, AG I (D), as per

the case put forward by petitioner. The petitioner at that time was still

working as AG-II (D).

4.

When the petitioner was still working as AG-II (D) at Food

Storage Depot, Kasganj, a memorandum dated 09.01.2002 along with

statement of imputation of misconduct and misbehaviour was issued

by respondent No. 3, Senior Regional Manager against the petitioner.

As per the memorandum dated 09.01.2002, the allegation against the

petitioner was that the petitioner failed to maintain absolute integrity

and devotion to duty while posted and functioning at Kasganj Depot

during the period 1997-98 and 1998-99. The statement of imputation

of misconduct against the petitioner as given along with

memorandum dated 09.01.2002 is reproduced as below:

“

FOOD CORPORATION OF INDIA

REGIONAL OFFICE

1/150, VIVEK KHAND, GOMTI NAGAR

LUCKNOW

No. Vig.4(1326)/RO.LKO/ALG/STL/2001/2184

Dt: 9.1.02

MEMORANDUM

________________

Shri. Tej Singh AG.II(D)(PP) is hereby informed

that it is proposed to take action against him under Rule 16

of CCS(CCA) Rules, 1965/ Regulation 60 of Food

Corporation of India (Staff) Regulation, 1971. A statement

of the imputation of misconduct or misbehaviour on which

action is proposed to be taken as mentioned above is

enclosed.

Shri. Tej Singh AG.II(D) (PP) is hereby given an

opportunity to make such representation as he may wish to

make against the proposal. If he wishes to inspect records

he may do so within 03 days of receipt of this

memorandum and omit his reply within 07 days after that.

If Shri. Tej Singh AG.II (D) (PP) fails to submit his

representation within 10 days of the receipt of this

memorandum, it will be presumed that he has no

representation to make and orders will be liable to be

passed against Shri. Tej Singh AG.II (D) (PP) ex parte.

Senior Regional Manager

Disciplinary Authority

To

Shri Tej Singh, AG.II (D) (through DM FCI, Aligarh)

Copy to: - X X X

Senior Regional Manager

STATEMENT OF IMPUTATION OF MISCONDUCT

OR MISBEHAVIOUR ON THE BASIS OF WHICH

ACTION IS PROPOSED TO BE TAKEN AGAINST

Shri.Tej Singh AG.II(D)/PP

Shri Tej Singh AG.II/PP while posted and

functioning as such at FSD Kashganj during the period 97-

98, 98-99 failed to maintain absolute integrity, devotion to

duty and committed following irregularity:-

Shri. Tej Singh AG.II/PP was entrusted with the

work of storage and maintenance of foodgrains. The

following cases of storage loss of wheat/ rice has been

reported in respect of FSD Kashganj for the month of

11/97 and 12/97. The losses are found to be unrealistic and

unjustified as per the enclosed statement:

Statement of storage loss submitted in respect of

FSD Kashganj for the period indicated above shows

storage loss of 4.56% to 4.86% during the storage period

of 56 to 83 months. The stocks were received in „B‟

category and issued in „B‟ category. The mode of

weighment of stocks at the time of despatch was 100% and

at the of receipt. 10%

Said Shri Tej Singh AG.II/PP accepted stocks with

higher percentage of moisture in connivance with depot

staff and also recorded incorrect moisture at the time of

issue/ despatch of stocks. Due to improper preservation

and incorrect recording of moisture by Shri Tej Singh AG

II/PP FCI suffered a loss as indicated in the enclosed

statement.

It is, thus, established from above that said Sri Tej

Singh AG II (D)/PP intentionally accepted rice/ wheat

stocks with higher moisture content and at the time of

despatches recorded incorrect moisture to adjust the

storage losses in connivance with Depot staff and for this

purpose made manipulation in records to hide his

misdeeds.

Shri Tej Singh AG.II(D)/PP is, therefore, found

equally responsible for abnormal storage losses leading to

huge

loss

to

the

Corporation,

1151-54

valuing

Rs.6,67,054-75.

Shri Tej Singh AG.II(D)/PP thus contravened

Regulation, 31 & 32A of Food Corporation of India (Staff)

Regulations, 1971.

(B.K. Agarwal)

Sr. Regional Manager

Disciplinary Authority”

5.

Petitioner denied the allegations made against him in the

statement of imputation of misconduct as baseless and unjustified. The

petitioner filed his reply/ representation to the memorandum before

the respondent No.3/ the disciplinary authority. However, the

disciplinary authority by its order dated 18.01.2003 imposed the

penalty of censure and recovery of Rs.64,756/- upon the petitioner.

The said amount of Rs. 64,756/- as directed to be recovered from the

petitioner was on the basis that the respondent herein had suffered loss

of Rs. 1,29,511/- and the petitioner was imposed 50% of the said loss

amounting to Rs. 64,756/-.

6.

Aggrieved by the aforesaid order dated 18.01.2003 passed by

the Disciplinary Authority, petitioner filed an appeal before the

Appellate Authority, respondent No. 2 herein.

7.

It may be mentioned herein that during the pendency of the

appeal before the Appellate Authority, the Disciplinary Authority

issued another memorandum dated 13.04.2004 along with statement

of imputation of misconduct with the same allegation of storage loss

during the same period, but for different stocks of rice. As regards the

second charge-sheet dated 13.04.2004, the petitioner herein was

exonerated and was not found guilty, considering the longer storage

period of stocks, by way of order dated 08.10.2004 passed by the

Disciplinary Authority.

8.

By order dated 10.08.2004, the Appellate Authority rejected the

appeal of the petitioner on the ground that the petitioner herein had not

made any new contention in his appeal and had reiterated the same

pleas that had already been taken into consideration by the

Disciplinary Authority.

9.

The petitioner, thereafter, filed writ petition being W.P.(C)

No.18192/2004 challenging the order of penalty and stay of recovery

of the amount. The said petition was dismissed vide judgment dated

01.07.2008 on the ground that the petitioner failed to advance any

plausible reason for not seeking the remedy of review, as provided

under Regulation 74 of FCI (Staff) Regulation. The petitioner was

granted liberty to seek review of the order of the Appellate Authority,

with further liberty to seek his legal remedies in case he was still

aggrieved with the outcome of the order passed by the Reviewing

Authority.

10.

Pursuant thereto, the petitioner filed a review petition before the

Reviewing Authority, respondent No.5. By order dated 02.03.2009,

the Reviewing Authority rejected the review petition of the petitioner.

Hence, the present writ petition came to be filed.

11.

On behalf of the petitioner, it is contended that the order of

penalty passed by the Disciplinary Authority as well as the orders

passed by the appellate and the reviewing Authority are illegal on the

face of it, as the petitioner cannot be held responsible for the alleged

storage loss only because he was custodian of stocks at the time of

disposal of the stocks of rice, after 5-7 years of its receipt. It is

submitted that the petitioner neither accepted the stock nor recorded

the moisture at the time of disposal of the stocks. The alleged stocks

were stored from different dates in the year 1991-92 and disposed of

during the years 1997-99. It is further submitted that the stocks of rice

were accepted in the year 1991-92, whereas the charge was handed

over to the petitioner only on 05.10.1994 on the book balance, without

any physical verification. Further, the moisture percentage was being

recorded by the then Technical Assistant and that recording of

moisture percentage was not the job of the petitioner, as the petitioner

was AG II (D) at that time.

12.

It is further submitted on behalf of the petitioner that during the

storage period, the stocks in question were subjected to physical

verification and no discrepancy was pointed out by any physical

verification team. It is further submitted that the Disciplinary

Authority has violated the specific mandatory provisions of

Regulation 60(d) of the Food Corporation of India (Staff) Regulations,

1971 („the Regulations‟) by not giving finding on each imputation of

misconduct. This fact of not following the procedure laid down in the

Regulations was also not considered by the Appellate Authority in

terms of Regulation 72 (a).

13.

It is further submitted on behalf of the petitioner that though

names of several persons were mentioned in the statement showing

details of storage loss cases, however, action has been taken only

against the petitioner as he was holding a lower post than others. It is

further contended that when the alleged total loss is Rs.1,29,511/- and

number of persons were involved as per the statement of imputation of

misconduct, the penalty of censure and recovery of 64,756, i.e., 50%

of the total alleged loss imposed upon the petitioner, is highly

disproportionate.

14.

On the other hand, it is submitted on behalf of the respondents

that the impugned orders, as passed by the respondent, have been

passed in accordance with law after affording due opportunity to the

petitioner and complying with all the norms of justice and fair play. It

is submitted that the petitioner was the custodian of the stock of rice

and was responsible for any unjustified loss due to pilferage from the

storage godown during the period of his posting in the depot. It is

submitted on behalf of the respondent that average abnormal storage

losses to the tune of 4.86% was observed in the rice stocks of the

month of November 1997, September 1998, November 1998,

December 1998 and January 1999, at the Kasganj Depot. The

petitioner being the AG II(D), was the custodian of stocks at the

relevant time for a considerable period of stay, i.e., from May 1994 to

January 1999. He was, thus, found responsible for such heavy loss to

the corporation in the form of storage loss along with other officials

namely Late Sh. Shyam Lal, Ex. AG II (D) and Sh. S.M. Haider, AG-

I(D). The disciplinary authority after considering the matter, issued

chargesheet to the petitioner and others, under minor penalty, i.e.,

under Regulation 60 of the Regulations. The disciplinary authority

after considering natural losses occurred during storage, i.e., shortage

of weight due to dryness of moisture, period of storage as per formula

evaluated and the representation of the petitioner, imposed the penalty

of censure and recovery of Rs.64,756/- upon the petitioner.

15.

Ld. Counsel for the respondent further submits that the

petitioner himself had not insisted for checking weight of stocks to

find out the position/trend of storage losses at the time of taking over

physical charge of stocks from Sh. S.M. Haider, AG I-(D). Petitioner

failed to conduct himself in the manner it was required in terms of

Chapter 16 and particularly point no. 16.6 of the storage manual of

FCI. Petitioner was duty bound to take charge of the stocks after

satisfying himself of the available stocks.

16.

It is further submitted on behalf of the respondent that as per

para No. 2.1.8 of Chapter II of Depot Staff Job Description, the

petitioner was required to control storage loss and transit loss, which

was found on higher side and that the petitioner has rightly been held

responsible for the loss by the competent authority. It is submitted that

the petitioner failed to control the storage loss, which is with reference

to loss of moisture that was on the higher side as per the norms which

only provide 0.7% against 1% moisture loss. However in the present

case the storage loss was to the tune of 4.86%.

17.

It is further submitted that the petitioner was exonerated vide

order dated 08.10.2004 in respect of the memorandum dated

13.04.2004 for different stocks of rice in the month of March 1998,

taking lenient view because lesser quantity of unjustified losses was

found by the disciplinary authority. It is further submitted on behalf of

the respondent that the penalty of recovery of Rs.64,756/- is half of

the actual unjustified losses suffered by the Corporation after giving

advantage of censure for the quantity and the amount of justified

losses. The petitioner has been penalised only for 50% of the total

unjustified loss, which should not be considered as highly

disproportionate. Petitioner was the custodian of the stocks and he

failed to check/control storage losses, as such he has been penalised

for his failure. Other officials were not the custodian of the stocks.

Thus, the position and gravity of charge of petitioner is serious and

different from other officials.

18.

It is further submitted that recovery of loss was also effected

from Mr. S.M. Haider, AG I (D) and from late Mr. Shyam Lal, Ex.

AG-II (D) also. There was no down-gradation in the stocks, as such

the quality control staff was not responsible for storage loss. Every

case has different merits and the disciplinary authority decided the

case after considering all the factors independently in every case,

hence, the recovery in one case cannot be compared with the other.

19.

I have heard both the parties and have perused the record.

20.

Scrutiny of the documents on record discloses that the stocks in

question, were neither accepted by the petitioner nor were accepted

under his supervision. The stocks in question were accepted in the

year 1991-1992, whereas the charge was handed over to the petitioner

only on 05.10.1994 on the book balance, without any physical

verification. The petitioner has filed on record the details of the

receipt/issue and name of persons who received/issued the stock of

rice in question. The table as filed along with the present petition is

reproduced hereinbelow:

21.

The documents on record also show that during the storage

period, the stocks in question were subjected to physical verification

and no discrepancy was pointed out by any physical verification team.

22.

The petitioner in his capacity as AG II (D) was only the

custodian of stocks at the time of liquidation of the stocks. There is no

document on record to suggest that the petitioner had any role to play

with regard to storage loss. As seen from the documents, the moisture

percentage was being recorded by the then Technical Assistant.

Recording the moisture content was not within the job description of

the petitioner, as the petitioner was AG II (D) at that time.

23.

It is to be noted that rice is a perishable commodity and it

cannot be stored for an indefinite period. As pointed out by ld.

Counsel for petitioner, the quality of rice deteriorates over time on

account of change in climatic condition in as much as the temperature

goes high to the extent of 47 degree Celsius with very low humidity

and such variation in temperature and humidity results in deterioration

of stock which ultimately results in storage loss on high side.

24.

There is no denying the fact that in the present case, rice stocks

were stored for a long period, i.e., about 5-7 years. Preservation of the

stocks are the duty of the Technical Staff (quality control), and such

responsibility cannot be saddled in the manner as done in the present

case, upon the petitioner, as the petitioner was only the custodian of

the stocks and not directly concerned with the quality control. During

the course of hearing, learned counsel for petitioner has handed over

the list of duties of the Depot staff of the Food Corporation of India,

as issued by the Head Quarter of the Food Corporation of India, 15-

20, Barakhamba lane, New Delhi-110001. The said chart of duties

gives in detail the routine work of the Depot staff, which does not

include any duty with respect to maintenance or checking of the

moisture content of the stored grains. It goes without saying that

maintenance or checking of the moisture content of the stored grains

involves expertise in the said field and would be duty of experts from

the technical department having knowledge and know-how in the said

field. Thus, staff having general duties cannot be held responsible for

specialized aspect of storage of grains involving maintenance or

checking of moisture content.

25.

Another important point to be noted is that recommendations

were made through monthly inspection report by the Assistant

Manager (Quality Control) and inspection notes of the Deputy

Manager (Quality Control) for early disposal of the stocks of rice

since 1994-1995. However, no action was taken by the respondents in

this regard. The stocks were disposed of only in the year 1997-1998

after about 5 to 7 years. The squad inspection report dated 02.03.1995

is relevant in this regard, which is reproduced for ready reference

herein below:

“SQUAD INSPECTION REPORT

1. Name and designation of

Shri. R.K. Sharma, Dy.

Inspection officer

Manager (QC)FCI,

Bulandshahr

2. Date of inspection

2.3.95

3. Depot inspected

F.S.D. Kasganj

4. (a) Storage capacity of the

Covered Cap Nature Total

the Depot.

Owned Hired thereof

9160

- 9160MT

4.(b) Commodity wise/Category wise

Classifications stocks held

in the depot as per latest

inspection by the local QC staff

COMMODITY

C F H TOTAL A B C D TOTAL

Wheat

- - - Nil - - - - Nil

Rice common Raw

Boiled 7809 - - 7809 - 7809 - - 7809

Fine Rice Raw

Boiled 31 - - 31 - 31 - - 31

X

x

x

x

x

x

7840 7840 7840

7840

5. Strength of QC staff and adequacy there of as per norms.

Sanctioned

Inposition

ASSTT. MANAGER (QC)

-

TECH.ASSTT.GR.I

-

TECH. ASSTT. GR.II.

1

TECH.ASSTT.GR.III

-

DUSTING OPERATORS

3+1 Picker

______________________________

6. Condition of godown with to check birds entrance in specific

reference to repairs the she windows, ventilator if any to be

carried out :- should be repaired immediately.

20. Date of last, inspection of this depot and the general

improvement noticed on QC aspects.

21. MISCELLANEOUS

The visiting officer is required to mention here the list of

instructions given by him in the depots inspection for

compliance.

(1) Brushing on stacks may be carried out regularly.

(2) Looze Rice was lying in Tin B shed in mixing position of birds

excreta. lt should be cleaned & filled in bags immediately.

(3) The godowns should be brushed & cleaned and particular in

tin sheds. Cob-webs should be removed from stack & wall

(4) In Rice stocks of the year 91-92 encrustration &

discolourisation has started. It should be liquidated at an early

date.

(emphasis provided)

(5) The cleaning of sheds is not being done since two months for

want of casual labours. AM(D) informed that H.T.C is not

supplying the casual labours. The casual labours should engaged

either from the risk & cost or from contingency but cleaning

should not be suffered at any cost

(6) The huge quantity of loose grain was noticed beneath the

crates in tin shed. It should be collected & cleaned.

DEPUTY MANAGER (QC)

F.C.I, BULANDSHAHR

DISTRIBUTION

1. The Senior Regional Manager, FCI, R.O, Lucknow.

2. The Zonal Manager (N) FCI, Z.O, New Delhi

3. The Manager (QC) FCI. Head Office, New Delhi.”

26.

It is also pertinent to note here as pointed at by Ld counsel for

petitioner, that all the works in the food storage depot are done under

the supervision of Assistant Manager (D) and all works regarding

preservation, recording of moisture and maintenance of quality of

stocks are done by the technical staff under the supervision of

Assistant Manager (Quality Control). All the works with regard to

quality control, i.e., recording of moisture, ascertaining the quality of

stocks and preservation are done by technical assistants under the

supervision of Assistant Manager (Quality Control). Hence, it is clear

that petitioner being only the custodian of the stocks and discharging

general duties with respect thereto, cannot be held responsible for the

allegations made in the statement of imputation of misconduct.

27.

Another aspect which needs consideration is the fact that the

order dated 10.08.2004 issued by the Disciplinary Authority does not

give specific findings with respect to each imputation against the

petitioner herein. This is against the Regulations of the respondent

Food Corporation of India, wherein in Regulation 60(d), it has been

stipulated that recording of finding on each imputation of misconduct

or misbehaviour is mandatory before imposing any of the penalties

(minor) specified in clauses (i) to (iv) of Regulation 54. The relevant

Regulation 60(d) of the Regulations is reproduced as below:-

“FOOD

CORPORATION

OF

INDIA

(STAFF)

REGULATION, 1971

60.

Procedure for imposing minor penalties:

(1)

Subject to the provisions of Sub-Regulation 59, no

order imposing on an employee any of the penalties

specified in clauses (i) to (iv) of Regulation 54 shall be

made except after:

(a) .........

(b) .........

(c) ..........

(d) recording a finding on each imputation of

misconduct or misbehaviour

............”

28.

Similarly, the Appellate Authority while rejecting the appeal

did not consider the import of Regulation 72(a), as per which the

Appellate Authority is enjoined to consider whether the procedure laid

down in the Regulations has been complied with or not. Thus, the

Appellate Authority had to consider the fact that the Disciplinary

Authority has failed to return a finding on each of the imputations as

levied against the petitioner herein.

29.

Another fact which is germane to the adjudication in the present

proceedings is that another memorandum dated 13.04.2004 was issued

against the petitioner herein with same allegation of storage loss

during the same period, but for different stock of rice. The storage loss

in the subsequent memorandum dated 13.04.2004 was shown to the

extent of 4.98%. The memorandum dated 13.04.2004 containing the

statement of imputation of misconduct against the petitioner herein is

reproduced as below:-

“ STATEMENT OF IMPUTATION OF MISCONDUCT

OR MISBEHAVIOUR ON THE BASIS OF WHICH

ACTION IS PROPOSED TO BE TAKEN AGAINST

Shri. Tej Singh AG. II (D)/PP

Shri. Tej Singh Asst. Grade-II (Depot) while posted

and functioning as such at FSD Kashganj, Etah during the

period February 96 to March 98. failed to maintain

absolute intergrity and devotion to duty and committed

following irregularities:-

Shri. Tej Singh Asst. Grade-II (Depot) was

entrusted with the work of storage and maintenance of

foodgrains in the following cases of storage loss of Rice

has been reported in respect of FSD Kashganj for the

month indicated below:

Commo Stock Storage Percen Moisture at Period of Value

Dity No. Loss tage the time of Storage of loses

@Rs.

572/-

______

Receipt Issue

Rice

A/1 81.51.000 4.97% 14.00% 12.00% 63

PB

months

Common

”

A/2 81.03.000 4.93% 15.00% 12.30% 51

months

”

A/3b 22.50.000 4.00% 14.20% 12.00% 60

months

”

A/5 81.02.000 4.94% 14.70% 12.10% 74

months

”

B/4 81.75.000 4.98% 14.80% 12.20% 75

____________________

_____

____

Total: 347.81.000

1,98,947.30

Shri. Tej Singh AG. II (D) was working at Unit I/C is

responsible for aforesaid losses.

The stocks were received in his godown on 100%

weighment in „B‟ category and liquidated through

weighbridge on 100%. Reasons for storage loss mentioned

in the storage loss statement has been considered even

then the losses are on higher side for which Shri. Tej Singh

Asst. Grade-II (Depot) is responsible.

It is, thus, established from above the said Shri. Tej

Singh AG. II (D) in connivance with other Depot staff

made manipulation in records to justify the shortages and

shown it as storage loss to hide his misconduct.

Shri. Tej Singh Asst. Grade II (Depot) thus

contravened Regulation, 31 & 32-A of Food Corporation

of India (Staff) Regulations, 1971.

(B.K. Agarwal)

Sr. Regional Manager

Disciplinary Authority”

30.

The Disciplinary Authority vide its order dated 08.10.2004

exonerated the petitioner from the charges as levied by way of

memorandum dated 13.04.2004, on the ground of considering longer

storage period of stock. Copy of order dated 08.10.2004 issued by the

Disciplinary Authority exonerating the petitioner herein qua the

memorandum dated 13.04.2004 is reproduced as below:-

“ Food Corporation of India

5-6, Habibullah Estate, Hazratganj, Lucknow- 226001

No. Vig. 4(1655)/RO. LKO/STL/ALG/2003/2812