IN THE GAUHATI HIGH COURT

(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND

ARUNACHAL PRADESH)

WP(C) 4839/2005
Shri Hira Das,
Son of Late Mangala Das,
Permanent resident of Village
Bibijan, Police Station Titabor,
District Jorhat, Assam.
...........Petitioner
-Vs1.

The Food Corporation of India, a Statutory Corporation

wholly owned and managed by the Government of India,
represented by the Chairman-cum-Managing Director,
Food Corporation of India, 16-12, Barakhamba Lane,
New Delhi.

2.

The Zonal Manager (NE), Food Corporation of India,

Zonal Office, G.S. Road, Ulubari, Guwahati-781007.

.Respondents.

BEFORE
THE HONBLE MR. JUSTICE B.K. SHARMA
For the petitioner

For the respondents

Date of hearing
Date of judgement

:
:

Ms. A. Ajitsaria, Adv.

Ms. A. hazarika, Adv.
Mr. P. K. Roy, SC, FCI.
Mr. S. K. Chakraborty, Adv.

10.04.2013.
10.04.2013.

JUDGEMENT AND ORDER (ORAL)

The petitioner is aggrieved by the Annexure-G order dated

29.1.2005, by which his earlier penalty of compulsory retirement was
reduced to that of reversion to the lower post of Watchman with
further direction to fix his pay scale of Watchman at the stage from
which he was promoted to the post of AG-III(D) till his retirement on

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attaining the age of superannuation on 30.4.2011. It was further

provided that the petitioner would be entitled to increments of pay
in the scale of Watchman.

2.

Prior to the said appellate order, the petitioner was imposed

with the penalty of compulsory retirement vide Annexure-F order

dated 7.10.2002, pursuant to a departmental proceeding in which the
following charge was levelled against the petitioner :STATEMENT OF ARTICLE OF CHARGE FRAMED
AGAINST SHRI HIRA DAS, AG-III (D) OF SHED B OF FCI
FSD CINNAMARA UNDER FCI DISTRICT OFFICE,
JORHAT.
Shri Hira Das, AG-III(D) while functioning as
Godown Assistant at B shed of FCI, FSD, Cinnamara
under District Office, FCI, Jorhat (Assam Region)
from 19.9.96 to 15.7.97 had acted in the manner of
unbecoming of a Corporation employee, in as much
as that he failed to maintain absolute integrity,
devotion to duty, service the Corporation honestly
and faithfully, and to safeguard the interest of the
Corporation
by
committing
the
following
irregularities.
AIRTICLE OF CHARGE
During 100% weighment conducted by Zonal
Office (NE) Special IA and PV team, a huge quantity
of foodgrains, sugar and 72 pcs. of gunnies were
found short at Shed B in FSD Cinnamara. Shri Hira
Das, AG-III(D) was the godown assistant of the said
shed and carried receipt / issue operations in the
said godown. He laws closely associated with the
Shed In charge and Supervisory staff in day to day
operations in the godown. Such huge discrepancies
were in the knowledge of Sri Hira Das, AG-III(D) by
virtue of his active association of the depot
operation on day-to-day basis. Some stacks were
found not in existence even. He never reported any
discrepancy to the Shed Incharge or any other
superiors.
Thus he concealed the shortage of foodgrains,
sugar and gunny stocks in the godown against the
book balances written in the books of accounts and
displayed lack of absolute integrity and devotion to
duty. He Laws a willful party for this large scale

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misappropriation / bungling which caused losses; to

the FCI to the tune of Rs.1,01,28,915.63 paise in
connivance with the shed incharge and other staff
and officers for his ulterior motive and personal
gain.
Sri Hira Das, AG-III(D), FCI, FSD, Cinnamara by
his above act had failed to maintain absolute
integrity, devotion to duty, serve the Corporation
honestly and faithfully and acted in a manner
prejudicial to the interest of the Corporation and
thereby made himself liable for the disciplinary
proceedings for violation of Regulation 31(a), (b), 32
and 32 A (5) (9) (30) of the FCI Staff Regulation,
1971.
3.

The aforesaid charge was brought against the petitioner vide

Annexure-A memorandum dated 15.1.1998. Before responding to the

charge, the petitioner had prayed for inspection of the listed
documents enabling him to submit an effective written statement in
favour of his defence. He also prayed for furnishing of the
photocopies of the listed documents. However, he was denied such
inspection

of

documents

vide

Annexure-C

communication

dated28.5.98. It was stated that since the charge sheet had been
issued under Regulation 58 of the FCI Staff Regulations, 1971, his
request for inspection of documents could not be acceded to and
accordingly it was rejected. However, it was stated in the said
communication that he would be entitled to inspection of documents
during the enquiry proceedings.

4.

Referring to the Annexure-D series depositions made by the

witnesses examined on behalf of the disciplinary authority, it is the

case of the petitioner that none of the said witnesses had attributed
any misconduct on the part of the petitioner in reference to the
charge that was levelled against him. It is the further case of the
petitioner that the non-application of mind on the part of the
disciplinary authority is amply demonstrated in view of the fact that
although he was only an Assistant in the particular godown but while
issuing the charge sheet, he was initially described as the Godown
Incharge. However, later on, the said mistake was corrected. It is in
this context, the petitioner has questioned the very issuance of the

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charge sheet, inasmuch as the charge contained in the said charge

sheet was in consideration that the petitioner was the Godown
Incharge, although he was not.

5.

Although, the petitioner was not provided with the copies of

the documents he had prayed for, to submit an effective written

statement but when the same was rejected, he had no other option
than to submit his written statement but reserving his right in
respect of the said plea. In due course, the disciplinary authority
appointed an Inquiry Officer to enquire into the charge that was
levelled against the petitioner. The said Inquiry Officer on conclusion
of the enquiry submitted his report, a copy of which was furnished to
the petitioner vide the Annexure-E letter dated 19.2.2002. On a bare
perusal of the enquiry report, nothing is discernible as to how the
evidence on record was evaluated. It is only in reference to the
charge that was levelled against the petitioner, the Inquiry Officer
with the observation since Shri Hira Das was assisting the Incharge
of the Shed B FCI Cinnamara w.e.f. 19.9.96 it would be well
proved that he was aware of the fact that there was a huge
shortage of stocks in the godown but he did not bring it to the
notice of his superiors for his ulterior motive and personal gain
held the charge to have been proved against the petitioner.

6.

Thereafter, the disciplinary authority by its order dated

7.10.2002

(Annexure-F)

imposed

the

penalty

of

compulsory

retirement making a grievance against which the petitioner preferred

the departmental appeal, which was disposed of by the impugned
order dated 29.1.2005 (Annexure-G). As noted above, by the said
order while setting aside the order of compulsory retirement, the
petitioner was imposed with the penalty of reversion to the lower
post of Watchman. It will be pertinent to mention here that the
petitioner was initially appointed as a Grade-IV staff under the
respondent Corporation and subsequently he was promoted to the
post of AG-III by order dated 17.9.1977. At the time of initiating he
departmental proceeding, he was working as Assistant Grade-III(D) in
the Cinnamara Food Storage Depot at Jorhat.

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7.

It is an admitted position that when the charge was brought

against the petitioner, he was only 9(nine) months old in the Depot.
He was a member of the clerical staff in the godown. In this
connection, the statements made in paragraphs 15, 16 and 17 of the
writ petition are quoted below for ready reference :-

15. That the petitioner states that the Petitioner

had been working in the Cinnamara FSD for a short
period of approximately 9 months merely as a
member of the clerical staff. It is obvious from the
nature of duties performed by the Petitioner that
shortage of stock as alleged, did not necessarily
come to the knowledge of the Petitioner. Further, no
evidence was adduced against the petitioner even
remotely connecting the Petitioner with the alleged
shortage of stock. On the contrary, there is evidence
on record establishing the fact that the Petitioner
had no complicity in the alleged shortage or that he
had knowledge of any shortage in the shed, if any.
The Petitioner further states that so far as the
Petitioners allotted duties were concerned, it did
not include within its ambit any matter relating to
receipt and issue of stock and, for that matter, he
could not in any way be linked to any shortage of
stock, if occurred at all.
16. That the Petitioner states that the duties and
responsibilities to be performed by an AG-II(D)
employee are circumscribed by the Job Description
of the FCI in force. As per the job description in
force at the relevant time, they are only entitled to
perform all such clerical duties as are assigned by
the Depot-In-charge or the Shed-In-charge on day to
day basis. During his tenure in the Cinnamara FSD
Shed No.4 for the brief period of about 9 months the
Petitioner was ordered to perform a variety of
duties including the duty of making entries in the
issue and receipt registers on few stray occasions
but not on a regular basis. The Petitioner further
states that making of entries in the said registers
does not afford any opportunity to be aware of the
actual stock position of the shed. Such position can
be gathered only upon physical verification of the
stock. The Petitioner did not perform any duty in the
matter of preparation of the O Form and
preparation of the stock registers which were
exclusively done by the Shed-In-Charge himself.

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17. That the Petitioner states that Shed-B of the

Cinnamara FSD of the FCI is an enormous
establishment and when the Petitioner was working
in the Shed-B of the Cinnamara FSD of the FCI where
the shortage of stock had allegedly taken place, the
same was is manned by a large number of employees
of various grades, including some in the Grade of AGIII and quite a few AG-III(D) grade employees had
performed the duties in the shed in question similar
to those performed by the Petitioner. But curiously,
such employees have not been
picked up for
punishment without there being any material to
show any additional or overt act by which it was
possible for the Petitioner alone to know the exact
stock position.
8.

According to the petitioner, he being not the godown incharge

and being only a member of the clerical staff, merely because there
was alleged shortage of materials in the godown, he could not have
been taken up for a departmental proceeding. It is the plea of the
petitioner that in godown, there was several employees and in case
of the kind of approach, the disciplinary authority has adopted, all
the employees working in the godown ought to have been taken up
for departmental proceeding. It is the further case of the petitioner
that there being no definite charge against the petitioner, the
authority could not have imposed the penalty merely on the basis of
conjectures and surmises.

9.

I have heard Ms. A. Ajitsaria along with Ms. A.Hazarika,

learned counsel for the petitioner. I have also heard Mr. P. K. Roy,
learned Standing Counsel, FCI along with Mr. S. J. Chakraborty,
learned counsel appearing with him. While Ms. A. Ajitsaria, learned
counsel for the petitioner submits that the petitioner has been made
a victim of the circumstances, Mr. P. K. Roy, learned Standing
Counsel, FCI submits that while in the enquiry proceeding, the
petitioner has been found to be guilty of the charge that has been
levelled against him, the Court exercising writ jurisdiction will not sit
on appeal over the findings recorded by the Inquiry Officer, the
Disciplinary Authority and the Appellate Authority. Ms. Ajitsaria,
learned counsel for the petitioner has placed reliance on the decision
of this court dated 22.11.2007 in WP(C) No. 7275/2002 (Muruli

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Goswami Vs. The FCI and others). The said case was pertaining to
the same issue and incident as involved in this proceeding. As in the
instant case in the said case also the petitioner involved therein was
working as AG-III in the same Godown. When it was found that
nothing was directly attributable to the petitioner, this Court was
inclined to set aside and quash the penalty of compulsory retirement.

10.

On the other hand, Mr. P.K. Roy, learned Standing Counsel,

FCI, has placed reliance on the judgement and order dated 27.4.2006
passed by this Court in another writ petition being WP(C) No.
2821/2003 (Shri Padma Kumar Bora Vs. the FCI and others )
relating to the same incident. In that case also the petitioner
involved was working as AG-III(Depot). Considering the nature of
evidence adduced and the attending facts and circumstances, the
said writ petition was disposed of remanding the matter back to the
disciplinary authority for imposition of lesser penalty

pursuant to

which, it is submitted that he was imposed with the penalty of

reduction to a lower stage in the same grade i.e. AG-III.

11.

Mr. P. K. Roy, learned Standing Counsel, FCI in his usual

fairness has submitted that in the evidence adduced by the PWs,

there is no direct accusation against the petitioner. However, he
submits that irrespective of the said deposition of the 5 PWs, when
the documentary evidence itself would go to show that there was
some amount of involvement of the petitioner in the entire episode,
the appellate authority was within its jurisdiction to impose the
particular penalty.

12.

I have very carefully considered the submissions made by the

learned counsel for the parties. I have also considered the entire
materials on records. As to what was the charge against the
petitioner in respect of the shortage of foodgrains in the godown has
bee noted above. In the charge, there is no direct attribution of any
misconduct against the petitioner. As noted above, initially the
charge was brought against the petitioner identifying him to be the
godown incharge. However, later on, the nomenclature was changed

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to that of Godown Assistant. It was submitted by the learned counsel

for the petitioner that like that of the petitioner, there were other
several Godown Assistants working in the godown. It is not
understood as to in what context, the petitioner was described as a
close associate with the said incharge and supervisory staff. It is also
not understood as to why those supervisory staff were not taken up
for any departmental proceeding.

13.

I have very carefully perused the depositions made by the 5

PWs examined on behalf of the Disciplinary Authority. In the entire

evidence, there is not even a single whisper against the petitioner
rather the said witnesses categorically stated that the petitioner was
not responsible for any loss of foodgrains in the godown. For
Example, the PW-1 in his deposition categorically stated that the
stock holder was the shed-incharge who had also signed the Stock
declaration. The specific question to PW-2 that as per the job
description of FCI, AG-III(D) was not supposed to maintain Stock
Ledgers, the witness categorically stated that he was not to maintain
the Stock Ledgers. Witness No.4 in his deposition stated about
allotment of duties to the AG-III officials. While naming the said
officials, he did not name the petitioner. One of the AG-III officials
whom he had mentioned in his deposition was Muruli Goswami, who
was the writ petitioner in WP(C) No. 7275/2002 and as noted above,
penalty of compulsory retirement imposed on him, has been set aside
by this Court vide judgement and order dated 22.11.2007. To a
specific question put to the PW-4 as to whether the petitioner was
allotted with any specific duty, his answer was that no duty was
allotted to him as he was a new comer. To another question his
answer was that no signature of the petitioner was obtained either
in the Stock declaration or in the counting sheet.

14.

Brushing aside the aforesaid overwhelming evidence to support

the case of the petitioner, the disciplinary authority solely on the

basis of the purported loss of foodgrains in the godown, imposed the
penalty of compulsory retirement on the petitioner, which however,

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on appeal was reduced to that of reversion to the lower post of

Watchman.

15.

The judgement on which Mr. P. K. Roy, learned Standing

Counsel, FCI has placed reliance was in the given facts and
circumstances of the case. In the said case, the particular witness
had not deposed with regard to the precise nature of duties allotted
to the petitioner. In the present case, the charge against the
petitioner is not that of any misappropriation, theft or pilferage. The
charge is one pertaining to failure to report what has been perceived
by the employer is the apparent irregularities of the stock. Unless it
is proved that the petitioner was responsible for reporting the loss, it
cannot be said that there was failure on his part. As noted above, he
was only 9 (nine) months old in the godown and no specific duties
were allotted to him by the godown incharge.

16.

Needless to say that the ratio of a decision will have to be

understood in the background of the fact involved in the said case.

Unlike the decision in Shri Padma Kumar Bora (Supra), in the
instant case, there was no attribution of any misconduct on the part
of the petitioner detailing the particulars. He was only picked up
with the notion that there was shortage of foodgrains in the godown
and thus he was responsible for such loss. It was in such
circumstances, the decision in Muruli Goswami (Supra) was
delivered exonerating the petitioner involved in the said writ petition
from the departmental proceeding and setting aside and quashing the
order of penalty.

17.

It will be unfair to sustain the penalty imposed against the

petitioner by the appellate authority in view of my aforesaid

discussions. As noted above, the PW-4 although had named some AGIII officials including Muruli Goswami but the petitioner was never
named. As to what has happened to the case of Shri Muruli Goswami
has been noted above. In his case, the order of compulsory
retirement has been set aside by this Court, on the other hand the
petitioner is with the penalty of reversion to lower post.

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18.

The petitioner has already retired from service on attaining

the age of superannuation on 30.4.2011. Thus, there is no question of

physical restoration of the position he was holding prior to the
impugned orders, more particularly, the appellate order dated
29.1.2005. However, he will be deemed to be in his service as AG-III
all throughout till his retirement from service.

19.

In view of the above, the impugned order dated 29.1.2005

stands set aside and quashed. Needless to say that consequent upon
setting aside and quashing of the impugned order, the petitioner will
be entitled to all consequential benefits.

20.

Writ petition is allowed. There shall be no order as to costs.

JUDGE
Sukhamay

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