Harbhajan Singh Riar vs State Of Punjab And Ors

This judgment shall decide aforementioned two petitions viz. CWP No.18961 of 2015 and CWP No.88 of 2015 as they involve similar questions of law

and facts.

By virtue of CWP No.18961 of 2015, preferred under Article 226/227 of the Constitution of India, petitioner prays for issuance of a writ in the nature

of certiorari, quashing order dated March 29, 2010 (Annexure P-7) passed by respondent No.2 as well as order dated July 17, 2015 (Annexure P-11)

passed by respondent No.1 and grant of consequential benefits.

Through CWP No.88 of 2015, petitioner prays for issuance of a writ in the nature of mandamus, directing the respondents to release regular pension

to him through the Accountant General, Punjab after calculation and fixation of pension as per the revised pay scale as well as to release leave

encashment, gratuity etc. to him alongwith interest @ 18% per annum on the delayed payment.

For reference to facts, file of CWP No.18961 of 2015 is being taken up.

Petitioner joined respondent â€" Department as Inspector in the year 1977, promoted as Assistant Food & Supplies Officer (for short, ‘AFSO’),

District Food & Supplies Officer (for short, ‘DFSO’) and thereafter as District Food & Supplies Controller (for short, ‘DFSC’). The

petitioner joined as DFSO at Ferozepur in October 2000 and continued to serve as such till August 2002 i.e. prior to his promotion as DFSC.

Subsequent thereto, he was served with chargesheet dated November 29, 2004 (Annexure P-1) by respondent No.1 unfolding the allegations that

while he was posted as DFSO, Ferozepur during the period from October 2000 to August 2002, the stock of 35100 bags of wheat was rejected by

Food Corporation of India which was lying stored in open plinth of M/s Shiv & Company in the year 1998-99 at PR Centre, Ferozepur Cantt., thus

causing loss to the respondent â€" Department. The aforesaid chargesheet was duly replied by the petitioner vide detailed reply/comments dated

December 27, 2004 (Annexure P-2). A bundle of documents concerned with the case and instructions issued by the Department, from time to time,

were also annexed with the reply. However that reply did not find favour to the respondents. Ultimately, departmental enquiry was initiated and

Enquiry Officer submitted his report dated December 20, 2006, endorsed to petitioner vide Memo dated March 14, 2007 (Annexure P-5). The detailed

comments/ reply was also submitted to Disciplinary Authority against the findings arrived at by the Enquiry Officer. However, vide order dated March

29, 2010 (Annexure P-7), penalty was imposed. The petitioner being aggrieved against aforesaid order dated March 29, 2010, preferred a

departmental appeal but that was dismissed vide order dated February 25, 2011 (Annexure P-9) by an incompetent authority which necessitated the

filing of CWP No.20799 of 2011. Order dated February 25, 2011 passed in appeal was set aside and competent authority/ appellate authority was

directed to decide the appeal afresh within a period of three months. Again, appellate authority dismissed the appeal vide order dated July 17, 2015

(Annexure P-11) which necessitated the filing of instant petition.

The contention of learned counsel for the petitioner while challenging the impugned orders is that charges levelled against the petitioner are absolutely

vague and indefinite, and due to the said reason, no proper reply to the chargesheet could be filed/given by the petitioner. Moreover, there is no

positive evidence brought on record by the Department to show that petitioner did not discharge his duties satisfactorily. He has been punished on

account of deterioration of the stock pertaining to the year 1998-99.

While referring to the various documents, it has been argued with vehemence by learned counsel for the petitioner that petitioner was posted as AFSO

at Ferozepur on October 12, 2000 and stock on account of which he has been penalized, was rejected by Food Corporation of India on March 28,

2001 i.e. only after five months of his joining. Prior to the joining of petitioner as DFSO, the stock remained stored at an open plinth for a period of 2

½ years, whereas the shelf life of wheat stored in an open is only one year as is evident from letter dated October 06, 2008 (Annexure P-19) issued

by the Food Civil Supplies Consumer Affairs & Information Technology Minister, Punjab and letter dated November 07, 2000 (Annexure P-13) issued

by the Director, Food & Supplies, Punjab and an affidavit of the Principal Secretary, Department of Food & Supplies has been filed before this Court

in Criminal Miscellaneous No.M-13372 of 2012. So, imposition of penalty upon the petitioner, who is only a supervisory officer, is not only against the

letter & spirit of aforesaid instructions issued by the Department concerned from time to time but also the provisions of law.

It was next argued by learned counsel for the petitioner that in similar cases of previous occasions, Department has exonerated the employees where

the wheat stock had been lying open for a period of more than one year whereas petitioner has been discriminated and punished. To buttress this

contention, learned counsel for the petitioner has made a reference to letter dated March 05, 2003 (Annexure P-17).

The next submission of learned counsel for the petitioner is that in the instant case, pick & choose policy has been adopted not only by the Enquiry

Officer but by Punishing authority also to concur with the enquiry report. Manoj Bajaj and Madan Lal, AFSOs, have been exonerated whereas

petitioner who was posted as DFSO and Mehar Singh, Inspector Grade â€" I, were held guilty. Manoj Bajaj was exonerated for the simple reason that

his role was supervisory and could not have taken penal action against the respondents but the petitioner was also in a similar position, especially when

an action has to be taken against Inspector by the District Food & Supply Controller whereas disciplinary authority is the Director, Food & Supply.

The petitioner cannot be fastened with any liability. Infact, petitioner performed his duties with dedication and devotion and had done everything which

was within his power as DFSO to control or avoid the deterioration of the wheat stock by writing various letters (Annexures P-2/11 and P-4/2) and it

was the senior authorities who did not take care of those letters and ultimately, fastened the liability upon the petitioner arbitrarily.

While concluding his arguments, it has been submitted by learned counsel for the petitioner that in the light of various submissions made by him,

impugned orders dated March 29, 2010 and July 17, 2015 are not sustainable in the eyes of law and are liable to be quashed. Resultantly, the petitioner

deserves disbursement of all the consequential retiral benefits which are being withheld by the State just on account of the impugned orders, accrued

to him on account of his superannuation on October 31, 2015.

On the other hand, learned State counsel has ebulliently argued that there is no infirmity, illegality and impropriety in the impugned orders dated March

29, 2010 and July 17, 2015 (Annexure P-7 and P-11) passed by the Punishing Authority as well as Appellate Authority, respectively, and have been

passed after affording an ample opportunity of being heard. Concededly, during his service tenure, petitioner was served with chargesheet dated

November 29, 2004 (Annexure P-1) unfolding the allegations that he remained negligent in maintaining the wheat and timely disposal of wheat stock

stored under his supervision. He was served with chargesheet which ultimately culminated into punishment order dated March 29, 2010 (Annexure P-

7) and subsequently, vide order dated January 28, 2011 (Annexure P-9), a recovery of ` 47,79,846/- (20% of loss) was imposed upon him, that too,

after conducting a regular enquiry and adopting the procedure prescribed therefor. The punishment order was also challenged by way of statutory

appeal which was upheld vide order dated July 17, 2015 (Annexure P-11). He further contends that various submissions made by learned counsel for

the petitioner do not carry any legal and factual weight as it was the petitioner who was having the control of the stock and it was his duty to take care

thereof, and to do the needful what was required at the relevant time. Since petitioner remained negligent and did not perform his duties properly, he

has been rightly punished. The instant petition being devoid of merits, is liable to be dismissed.

After bestowing due consideration to the rival submissions made by learned counsel for the parties and meticulously scanning all the various

documents available on file, this Court is of the considered view that submissions made by learned counsel for the petitioner carry legal as well as

factual weight.

The petitioner has not only been discriminated but appears to have been fabricated. A glance at Annexure P-17 i.e. letter dated March 05, 2003

transpires that in the similar cases of previous occasions, the employees where the stock had been lying in open for a period of more than one year

have been exonerated, that too, by placing reliance upon other documents whereas in the instant case, punishment has been imposed despite the fact

that wheat stock was stored 2 ½ years prior to joining of the petitioner. Other documents â€" letter dated November 07, 2000 (Annexure P-13)

issued by the Director, Food & Supplies, Punjab and letter dated October 06, 2008 (Annexure P-19) issued by the Food Civil Supplies Consumer

Affairs and Information Technology Minister, Punjab also depict that the shelf life of the wheat stored in open is one year. Not only this, Principal

Secretary, Department of Food & Supply also furnished a specific affidavit before this Court in Criminal Miscellaneous No.M-13372 of 2012 clearly

unfolding that the shelf life of the wheat stored in open is one year. In the case in hand, there is nothing on record to suggest as to why these letters

and instructions have not been taken into consideration either by the Enquiry Officer while submitting his report dated December 20, 2006 or by the

Punishing Authority while passing order dated March 29, 2010 (Annexure P-7) or by the Appellate Authority while passing order dated July 17, 2015

(Annexure P-11). There is not even slightest reference of these documents/instructions in the aforesaid orders whereas it was clearly elaborated in

the reply submitted by the petitioner.

Here it would be pertinent to mention that there is no specific evidence brought on record by the Department which could reflect that it was the

petitioner who is responsible for the deterioration of the stock or the rejection of stock or that he did not discharge his duties properly or satisfactorily.

The enquiry appears to have been initiated just on the rejection of the stock by FCI on March 28, 2001 and since it was the petitioner working as

DFSO at the time he has been made liable. Moreover, being DFSO, he has also been dealing with stock in a supervisory capacity and he did whatever

was required to be done by him, wrote various letters to different senior officers for making an arrangement for the disposal of stock and in that event,

he cannot be fastened with any liability.

In the light of what has been observed above, both the petitions are allowed. Impugned orders dated March 29, 2010 (Annexure P-7) and July 17,

2015 (Annexure P-11) are not sustainable in the eyes of law and are set aside. Consequently, petitioner is entitled to all the consequential retiral

benefits having accrued to him on his retirement. The respondents are further directed to calculate his retiral benefits and disburse the same to

petitioner, if not earlier disbursed, within a period of two months from the date of receipt of a certified copy of this judgment. In case of default,

petitioner shall be entitled to interest @ 9% per annum from the date of filing of petition i.e. September 07, 2015 till actual payment.

No order as to costs.