Z.A.Siddiqui vs District Manager, Food Corporation of India, Sitapur and Others

Shabihul Hasnain, J.—Heard Sri S.K. Mehrotra, learned counsel for the petitioner and Sri Alok Mathur, learned counsel appearing for the opposite parties.

The petitioner has filed this writ petition against the order dated 17.6.2002 passed by District Manager (Disciplinary Authority) of the Food Corporation of India, which has been impugned and is annexed as Annexure1 to this writ petition. Through this order, penalty of recovery of Rs.1,09,790.00 in thirty six equal installment has been imposed upon the petitioner under Regulation 56 of Food Corporation of India Staff Regulation, 1971.

Sri S.K. Mehrotra, learned counsel for the petitioner has argued that the order impugned is arbitrary, nonspeaking and has been passed in mechanical manner without proper application of mind. The reply submitted by the petitioner to the charges levelled against him has not been considered. On these grounds the order is vitiated and is liable to be set aside.

The case of the petitioner, in nutshell, is that while he was posted as A.G.II (PP). He was assigned duty of dispatching sugar from Hargaon to Jai Nagar (Bihar). He dispatched the sugar through railway receipts but when the sugar reached Jai Nagar, consignee made a complaint that the sugar was of substandard and hence a claim was made against the Food Corporation of India. The petitioner has been held responsible without any inquiry and thereafter, the recovery has been imposed as aforesaid.

Sri Alok Mathur has refuted the arguments and submitted that a memorandum dated 3.5.2002 was issued and received by the petitioner and a detail of the charges were annexed along with the memorandum. He has argued that mainly there were two charges; firstly that the petitioner sent substandard sugar, which was of yellow colour, wet, and juices were oozing out of the bags, hence the quality of the sugar was definitely inferior. Secondly, it is rule that on such complaint a joint inspection by the representative of the consignee and officer of the Food Corporation of India is made on the spot to ascertain veracity of the complaint but the petitioner avoided despite repeated efforts of the department to go for the joint inspection. The disciplinary authorities on these reasons has come to the conclusion that the petitioner was responsible for sending substandard sugar. Food Corporation of India suffered because, on the claim being made by the consignee, Food Corporation of India has to reimburse the damages.

In addition to this, Sri Alok Mathur has further argued that against this order, there was statutory remedy, which the petitioner did not avail. Hence, the petition should be dismissed on the ground of availability of alternative remedy, itself.

Sri S.K. Mehrotra, learned counsel for the petitioner has submitted that the finding of the dispciplinary authority is not based on any cogent material. The impugned order, which has been passed by the disciplinary authority has not discussed the reply given to the charges by the petitioner, at all. The petitioner has in great detail explained as to under what circumstances, it was impossible for him to go for joint inspection, rather it was made difficult by action of the consignee that the joint inspection could not be made.

Mr. Mehrotra argues that merely on the ground that the petitioner did not participate in the joint inspection, would not automatically render him responsible and guilty to the charges. No rule of inquiry ever envisages such a conclusion. It is not necessary, according to Mr. Mehrotra, that only the petitioner should have gone for the joint inspection. In such cases, any other officer of the department could have performed this duty for ascertaining the truth. The disciplinary authorities were predetermined to put blame on the petitioner and without going through the reply, they have passed the impugned order.

Mr. Mehrotra further argues that the petition was entertained by the High Court; the counteraffidavit was sought from the opposite parties; the petition was filed in the year 2002, hence at this belated stage in the year 2009 much water has flown and thus, the question of alternative remedy does not hold good.

In the present case while the petitioner was posted as A.G.II (PP), he dispatched the sugar through railway receipts but on a complaint made by the consignee that the sugar was of substandard, so he made a claim, petitioner has been held responsible without any inquiry and thereafter, the recovery has been imposed as aforesaid. In my opinion, in case of noncooperation by the charged employee, the opposite parties are not absolved of the duty for proving the charges by an independent inquiry. Whenever an employee is charged by the employer for specific misconduct, it is the duty of the employer to prove the charges beyond reasonable doubt. No attempt has been made on behalf of the opposite parties to make independent inquiry and to even discuss the reply in the impugned order. The order, thus, cannot stand to reason and is vitiated.

This Court, in exercise of its jurisdiction under Article 226 of the Constitution of India, can deal with such matters when the entire record is available before the Court. Hence, the plea of statutory alternative remedy being available to the petitioner, is turned down.

In view of what has been discussed above, the writ petition succeeds and is allowed. The impugned order dated 17.6.2002 as contained in Annexure No.1 to this writ petition is, hereby, quashed. However, the opposite parties will be at liberty to proceed with an independent inquiry, if they so choose, in accordance with law.

No order as to costs.

(Petition allowed)