IN THE HIGH COURT OF JUDICATURE, AT PATNA
(CIVIL WRIT JURISDICTION)
C.W.J.C No.
of 2019
In the matter of an
application
Article
226
under
of
the
Constitution of India
AND
In the matter of:
.........
………..
Petitioner
Versus
..................
--------
Respondents
To,
The Hon’ble Justice Mr. Sanjay Karol,
the Hon’ble Chief Justice of the High Court of Judicature
at Patna and His Companion Justices of the said Hon’ble
Court.
The humble petition on
behalf of the petitioner
above named.
MOST RESPECTFULLY SHEWETH :1.
That the petitioner seeks indulgence of this Hon'ble
High Court for the following relief/s:
(A) A writ in the nature of Certiorari or any other
appropriate
writ/s,
order/s
direction/s
quashing the following:
(i)
The order by the disciplinary authority
under
regulation
58
by
the
general
manager (region) wherein the petitioner
was reversed to the stage of lower post of
AGII(D) from where the petitioner was
promoted to the post of AGI(D) and will
remain on the same post without earning
increaments
till
retirement
without
applying his independent and judicious
mind.
(B) A writ in the nature of mandamus or any other
appropriate writ/s, order/s direction/s for the
following reliefs:
(i) To
call
for
the
order
Vig/S&S/3(2)/inspection.REP/Koinee/Gopal
ganj/07-08/122 dated 20-05-2010.
(C) To any other relief/s to which the petitioner is
found entitled to.
2.
That the substantial points involved in the case are
as under:
i.
Whether the impugned order wherein the
petitioner was reversed to the stage of lower
post of AGII(D) from where the petitioner was
promoted to the post of AGI(D) and remained
on
the
same
post
without
earning
increaments till retirement without applying
his independent and judicious mind and also
a fine of Rs. 2,30,000/- to compensate the
loss caused to the corporation was Arbitrary,
Mala-fide and unreasonable?
ii.
Whether the reversion of post of the petitioner
was justified in the eyes of law?
iii.
Whether
the
impugned
actions
of
the
respondent authoritiy are violative of the
rights of the petitioner under Articles 14 and
21 of the Constitution of India?
iv.
Whether fixation of salary of the petitioner by
the disciplinary authority is discriminatory in
nature?
v.
Whether
the
impugned
order
has
been
reached on the basis of any sound procedure?
vi.
Whether the respondent authority has worked
with pre-occupied mind which manifests this
order to be injudicious and prejudiced?
vii.
Whether the respondent authority should
have given an opportunity to the Petitioner to
duly represent his case?
viii.
Whether the impugned order is against the
principles of natural justice?
1. That it is most humbly submitted that on 02-012008 the disciplinary proceeding started on against
the petitioner and on 20-05-2010 the disciplinary
authority has imposed upon the petitioner AGII(D)
presently
ADI(D)
(C.O.)
for
recovery
of
Rs.
2,30,000/- and further imposes penalty of reversion
to the stage of lower post of AGII(D) from where the
petitioner was promoted to the post of AGI(D) and
will remain on the same post without earning
increaments till retirement vide order cited above,
without applying his independent and judicious
mind
and
also
a
fine
of
Rs.
2,30,000/-
to
compensate the loss caused to the corporation as a
reason for storage loss which was explained at
length in the reply in defence brief dt. 12-02-10 and
reply of enquiry report dt. 19-04-10 by the charge
official. And further the charge was elaborated on
28-08-2019.
2. That it is most humbly submitted that it has been
completely ignored and no fact has been taken into
consideration by the disciplinary authority while
imposing penalty and thus caused to make an
appeal before your goodself with the hope that your
honour will examine the actual facts and will award
justice in the best interest of the petitioner of the
petitioner.
3. That it is most humbly submitted that a charge
sheet under Regulation 58 of FCI staff regulation
1971 was issued against the petitioner AGII(D) Now
AGI(D)
then
Gopalganj
depot
by
the
incharge
PPC
disciplinary
Koinee
and
authority
vide
memorandum Vig/S&S/inspection. REP / Koinee /
Gopalganj / 07-08-122 dt. 2-01-2008 to enquire
into the case.
4. That it is most humbly submitted that Sri K.P.
Sinha DGM (Elect) was appointed as enquiry officer
and Sri S.N. Singh Mananger (G) was appointed as
presenting officer.
5. That it is most humbly submitted that in course of
enquiry all the P.W.S. were examined and cross
examined, relied documents were exhibited, defence
documents were also adduced in course of enquiry
and defence witness were also examined and cross
examined by P.O. and defence.
6. That it is most humbly submitted that based upon
documentary evidence as well as oral evidence
adduced, the hon’ble enquiry officer submitted his
report
on
24-02-2010
whose
findings
and
conclusions are reproduced here with – “From the
above
submission
exhibited
documents
and
deposition of the witness the charge framed against
the
petitioner
AGII(D)
Now
AGI(D)
vide
memorandum issued under ref. no.- Vig / S&S-3(2)
/ Inv- Rep / Koinee / Gopalganj / 07-08/122 dt. 201-08 issued by disciplinary authority i.e. General
Manager FCI, Patn, It is proved that weight check
memo (J form) in respect of recording of arrival
weight and issue weight as per laid down procedure
was not prepared by the C.O.
7. That it is most humbly submitted that the charge of
quantum of storage loss i.e. 1122.46.720 Qtls at
PPC Koinee and storage loss to the tune of
405.17.500 Qtls at PPC
Gopalganj (total storage
loss to the tune of 1527.64-220 Qtls) during the
relevant period which caused financial loss to the
tune of Rs. 23,60,207.19 to the corporation, does
not stand proved to the extent it is declared.
8. That it is most humbly submitted that after
submission of prosecution brief the C.O. has been
directed to submit his written brief, in compliance
with a written defence brief submitted on 12-022010 explaining there in the details of facts and
circumstances to prove innocence however the
disciplinary authority with pre-occupied mind has
not considered any of the real cause and imposed
severe
penalty
which
is
not
judicious
rather
prejudiced.
9. That it is most humbly submitted that due to the
abovementioned reason the C.O. being aggrieved
with the judgement making an appeal before your
goodself for appeal.
10.
That it is most humbly submitted that the
petitioner (C.O.) was posted at P.P.C. Koinee for
procurement of paddy and acceptance of CMR rice
from PACS and other state agencies during kharif
season 2004-05 and 2005-06, during KMS 2005-06
also nominated at PPC Gopalganj for procurement
of paddy and rice.
11.
That it is most humbly submitted that here it
is pertinent to mention that tough and difficult
assignment was given to the C.O. by the authority
as it is in fact not easily possible to look after
procurement of two centres which are situated at a
distance of about 11 to 12 km without having any
assistance.
12.
That it is most humbly submitted that it is
needless to point out the volume of work to be
performed during procurement i.e. arrival of huge
stock, its weighment, stacking accounting of bags,
documentation etc. being sincere and loyal to the
organization C.O. had anyhow pulled on the work
sincere at both the centres with full satisfaction of
the state administration, state agency and FCI
authority who visited time to time both the centres.
13.
That it is most humbly submitted that it is on
record the condition of both the godown, i.e. Koinee
and
Gopalganj
was
not
storageworthy
and
unhygienic as the surroundings of the godown was
covered with herbs, shrubs and trees and therefore
unfit for longer storage. Unfortunately the FCI
district administration could not take care of the
condition of godown and allowed to store huge
quantity of food grains for longer period.
14.
That it is most humbly submitted that during
the said crop year apart from Koinee and Gopalganj
there were about twelve PPC’s which were in
operation where CMR rice from PACS and other
state agencies were accepted and stored. And in
this context it would be proper to mention that the
Area Manager made his entire efforts to liquidate
rice from above mentioned remaining centres within
the shortest time on priority whereas being fully
aware of the huge quantity of rice purchased at PPC
Koinee and Gopalgunj could not be liquidated and
hence allowed to remain in the storage for years or
more for the reasons best known to him.
15.
That it is most humbly submitted that it is on
record that release orders were issued to Koinee
and Gopalganj but subsequently diverted to other
PPCS without any cogent reasons. For example few
copies of diverted release orders are enclosed
herewith (enclosure-1).
16.
That it is most humbly submitted that had
the area office been sincere to liquidate the stock so
purchased in time there would not have been any
event of occurrence of storage loss and it could be
checked well within time prior to heavy Khapra
infestation.
17.
That it is most humbly submitted that there
had been persisting infestation in the stock with all
major
pest prominently
with Khapra
and no
treatment were imparted as a result the infestation
continued for months together which was observed
by AGM(QC) Patna during his visit and accordingly
submitted his report which is enclosed herewith
(enclosure-2).
18.
That it is most humbly submitted that as
mentioned by prosecution that treatment was
provided which is completely misleading, as stock
remained
untreated
which
caused
khapra
infestation. It is on record that on 30-11-2006 the
stock was treated with delta matherin and chamber
fumigation was carried out on 29-12-06. Thus
treatment
is
procedurily
wrong
because
delta
metherin is supposed to be used after fumigation,
not
before
fumigation.
Secondly,
chamber
fumigation is not adequate to kill major pests like
khapra in general. Chamber fumigation gives only
50% to 60% mortality provided chambers are
perfectly airtight. It is essential to point out that At
Koinee, the chamber can’t be perfectly airtight
which is a matter of verification.
19.
That it is most humbly submitted That
Manager (QC) of Area Office Chapra has deliberately
avoided to accept the truth While giving reply of
various questions during cross examination of the
defence as may be evident from the reply of Q.N. 5,
6, 7, 8, 9, 10, 13, 15, 17, 18, 19, 20 8: 21 which
was direct subject of Manager (QC).
20.
That it is most humbly submitted that Being
Manager (QC) of Area Office Chapra he is supposed
to
know
the
development
going
on
in
the
depots/PPC'S within his jurisdiction and thus his
reply in course of enquiry is completely misleading
and untruth. At one stage Manager (QC) in his reply
of cross examination Q.N. 1 that there had been
heavy infestation in the stock at both the PPC. On
perusal of deposition in course of enquiry it can be
well assessed that in the field of quality control his
reply of various question was misleading and
attempted to avoid the truth as well as factual
position of both the PPC's.
21.
That it is most humbly submitted that the
observation made by the disciplinary authority
while delivering judgement are recorded at Page-II
of the order as referred above. On perusal of
observation
it
can
be
said
that
disciplinary
authority has measurably failed to examine the
facts as explained in the reply of C.O. as well as
facts came on in the course of enquiry.
22.
Therefore, Aggrieved by the above order, the
petitioner had filed an appeal petition dated 14-072010 before the appellate authority. And the same
got rejected on 11-02-2013. Further, the petitioner
filed review petition dated 10-04-2013 against the
order dated 11-02-2013 and again the same got
rejected on 27-05-2019.
23.
That it is most humbly submitted that the
observation are as under:
(a) This observation made is not based on fact,
It is wrong to allegate that vital document was in
possession of C.O. As the success sor refused to
take charge of all the document maintained by C.O.
except gunny register, the C.O. was forced by the
Area Manager to leave the centre after handing over
charge and therefore all the documents of this
period was lying at Koinee and Gopalganj. It was
not taken away by the C.O. However it was the duty
of Area Manager to ensure proper handing over of
charge of stocks and stores and other relevant
documents which he also failed to do. The whole
matter was in the knowledge of the Area Manager
Chapra. When C.O. requisitioned few documents in
his defence, the Area Office could not supply the
requisitioned
documents
to
the
enquiry
even
though the documents were exclusively in the
possession of Area Office Chapra. Finding no way
the C.O. personally searched out the documents to
disprove the charges and handed over to area office.
Area Officer transmitted the documents through
C.O. to cover up their failure.
(b) The observation of disciplinary authority is
not
sustainable.
If
the
stock
remained
in
unscientific manner for longer period occurrence of
loss to some extent is inevitable. Further mixing of
stock of different crop year is also not sustainable
as due to lack of
storage space both PPC such
position was bound to happen. It was responsibility
of Area Officer to liquidate stocks of earlier crop
year at priority basis to avoid mixing of newly
procured stocks which Area Manager failed and it
was difficult for a person to store separately in such
situation and he was not able and competent to
prevent further purchase on this pretext.
(c)
That
this
observation
of
disciplinary
authority is baseless. In this context it is proper to
mention that there was no order to purchase rice
directly from the farmers, the order was to accept
rice from the PACS and other state agencies as
nominated by state Govt. who are supposed to
bring stock at standard wt. @ of 50 kg. per bags,
Only test weighment was needed to ascertain that
bags are standard and such test weighment was
recorded in a register as ‘1' form was not supplied
by the Area Office what to speak of Koinee and
Gopalganj it was not supplied to any of the centres
even today it is not supplied to any of the centres.
Beside if any procedural laps committed by the C.O.
and noticed by Area Manager. It should have been
pointed out, checked and rectified by the Area
Manger at the same period particularly when Area
Manager visited the centre in hours of purchase as
well as delivery of stocks. In contrary Area Office
accepted all the statements returns submitted every
month and on receipt of statement the laps so
pointed out at belated stage could not be pointed
out at that time. Here it can be said that the C.O.
had been made victim without any guilt with preplanned conspiracy and subsequently to save their
own skin.
(d)
That
observation
made
by
disciplinary
authority at Para 4 is nothing but to evade to accept
truth. It has already came on record in course of
enquiry that the stock was stored more than
capacity of the godown. Due to prolong Khapra
infestation the stacks were collapsed on each other
as well as depot was in jam packed condition and
therefore stack’s identity was lost and hence one
godown
became
one
stack
although
as
per
procedure the C.O. has submitted stack wise
accounting.
Contention
to
calculate
loss
considering one stack of one chamber is not wrong.
(e) That observation made at para 5 of the
disciplinary authority is also baseless. The stocks of
Koinee and Gopalganj once treated with delta
metherin on 30-06-2006 and prior to that stock,
were remained untreated, only one time chamber
fumigation was done on 29-12-2006 prior to this,
the stocks remained untreated. The C.O. was
posted from Nov. 2006 when sizable stocks of rice
were purchased and stored and treatment at only
dates i.e. 30-11-06 and 29-12-06 is not adequately
sufficient to make stock pest free and therefore this
contention of disciplinary authority is wrong. It is
an established fact that stock of both the centres
were heavily infested with Khapra insect and
continued infestation for months together Which
intact caused loss to the stocks to the greater
extent
beside
other
reasons.
The
disciplinary
authority has failed to examine the fact in respect of
loss occurred due to prolonged Khapra infestation.
(f) That the observation made at para-6 is also
not truth. It is on record that stock was purchased
during crop year 05-06 up to June 2006. The
manner as well as condition in which the stocks
were stored the period of six month to ten month is
enough to lose weight particularly when stocks are
stored in unscientific manner in unstorage worthy
godown beside heavy Khapra infestation the losses
is inevitable.
24.
That it is most humbly submitted that beside
above there had been variation in moisture which is
also one of the reason of loss; Non collection of
spillage, severe rat trouble, bird trouble, as well as
Biological change used to occur in the stock. These
are the vital reasons for which loss occured to the
minimum extent i.e. over all 0.8% in respcet of both
the godowns.
25.
That it is most humbly submitted that in
response to enquiry report the C.D. has submitted
defence brief as well as details reply on enquiry
report in which all the facts has been explained at
length hence there is no necessity to repeat the
same. However for your kind perusal and ready
reference both the replies are enclosed herewith
(Enclosure- III & IV).
Therefore, In view of the aforesaid facts appellant
prays that your goodself would be graciously pleased
to examine the whole case sympathetically and review
the
judgement
pronounced
by
the
disciplinary
authority to award justice and relief to the appellant
as appellant is innocent and rendered his service in
odd situation on behalf of the organization. Your such
kindness will act as a breather to pull on remaining
part of service with new vigor. For this act appellant
shall remain grateful to you.
GROUNDS
A. Because in defence brief the CO has also explained
that ‘J’ form book for recording arrival/issue weight
were not supplied by district office and therefore
finding no alternative weighment was recorded in
Register and the said register was not accepted by
the committee during the investigation as if they
were with pre-occupied view. Along with this, some
vital defence documents which were the property of
FCI district office, Chapra were not supplied by the
prosecution which has lead to denial of reasonable
opportunity and natural justice. Further, in the
reply of enquiry report submitted by I.O., the
petitioner firmly questions that “Can area office
show any proof that ‘j’ form was supplied and the
same were not maintained by I/C’s PPC including
Koinee & Gopalganj.” And this question remains
unanswered.
B. Because plenty of release orders although issued in
favour
of
PPC
Koinee
and
Gopalganj
were
subsequently diverted to other depot knowing the
fact that the stacks at Koinee and Gopalganj are
huge in quantity and are also already infested. This
non-liquidation of procurred rice stack for about an
year has led to storage loss. Further, the said
document
requisitioned
containing
by
the
released
order
petitioner
as
was
defence
documents but not supplied by the concerned area
office, chapra and also no non-availability certificate
was given to the petitioner.
C. Because it is an established fact that stacks got
infested by khapra pests and remained untreated
for months together caused loss to the stocks for
which the petitioner cannot be blamed. It is also a
fact that moisture migration had also played a vital
role in reducing the weight beside other factors
such
as
(1)
non-storageworthy
godown,
(2)unscientific
manner
of
storage,
(3)
non-
availability of dunnage, (4) godown was surrounded
with herbs, shrubs and wild plants which are a
source of infestation (5) birds, squarrel problem (6)
stocks remained in storage ranging from 9 months
to 11 months, that too, in infested condition (7) rat
trouble (8) variation in moisture (9) unhygienic
storage (10) khapra infestation (11) non issuance of
release orders adequately to liquidate the stocks
being fully aware of the fact that the godown of PPC
Koinee
and
Gopalganj
is
unhygienic
and
for
temporary storage. These are bonafide reasons of
loss.
And
storage
loss
was
inevitable
and
unavoidable in those conditions.
D. Because during examination in chief, it was stated
by the DW1 that treatment cannot be given if stacks
are built beyond prescribed size or limit. And earlier
during the examination in chief by defence the DW1
has confirmed that in both the PPCs the size of the
stack was abnormal. Also, it was confirmed by the
DW1 that the rice stocks held in PPC Koinee and
Gopalganj were not clear and free from infestation
from August, 06 to March, 07. Therefore, it is highly
probable that the storage loss was caused due to
the khapra infestation.
E. Because as mentioned by the prosecution that
treatment was provided is completely misleading, as
stocks remained untreated which caused khapra
infestation. It is on record that on 30-11-2006 the
stock was treated with delta matherin and chamber
fumigation was carried out on 29-12-06. That here
it is pertinent to mention that the treatment is
procedurily
wrong
because
delta
matherin
is
supposed to be used after fumigation, not before it.
Secondly, chamber fumigation is not adequate to
kill major pests like khapra in general. chamber
fumigation
gives
only
50%
to
60%
mortality
provided chambers are perfectly airtight. It is
essential to pointout that whether Koinee chamber
is perfectly airtight or not is a matter of verification.
F. Because it is further to mention that the petitioner
had submitted the statement of trend of loss every
month on due time which was accepted by the area
office. If the loss so was declared by the petitioner
was hypothetical then why it was accepted, why
objection at any point was not raised by area office.
Also, it is the matter of record that area manager
and his nominated officer visited both the centres at
regular interval and there was occasion when they
were present at the time of receipt/issue and
watched/supervise entire operation but they never
pointed out anything otherwise.
G. Any other ground/s with the permission of this
Hon’ble Court.
3. That the Petitioner submit that apart from the
present petition, they have no other alternate
efficacious remedy.
4. That the petitioners are left with no option but to
move this Hon’ble court by filing this writ petition
for direction to the respondent for expeditious
redressal of his grievances.
5. That the petitioners have not moved earlier before
this Hon’ble court in this matter.
It is therefore prayed that your
lordships may graciously be
pleased
to
allow
this
writ
petition.........
And / or
Pass such other order / orders
as your lordships may deem fit
and proper in the light of
justice,
equity
and
good
conscience.
AND FOR THIS, THE PETITIONERS SHALL FOREVER
PRAY.
IN THE HIGH COURT OF JUDICATURE, AT PATNA
(CIVIL WRIT JURISDICTION)
C.W.J.C No.
of 2019
In the matter of:
..............................................
....
Petitioners
Versus
.........................
…
SYNOPSIS
....................................
LIST OF DATES & EVENTS:
....................
AFFIDAVIT
...................
Respondents