Court No. - 13
Case :- WRIT - A No. - 53748 of 2007 Petitioner :- Vinod Kumar Tiwari Respondent :- State Of U.P. And Others Counsel for Petitioner :- M.K. Mishra,Ashish Kr.Nagvanshi,Vinod Kumar Counsel for Respondent :- C.S.C.,V.B. Mishra
Hon'ble Ajit Kumar,J.
The petitioner in this writ petition has questioned the recovery to the tune of Rs. 61,062.62 initiated by 4th respondent vide order dated 19th January, 2005 on being not satisfied with reply to the petitioner submitted to him in response to show cause notice.
The facts of the case are that petitioner who was working as District Manger with respondent corporation was charged by means of show cause notice dated 3rd August, 2004 in respect of loss occurred to the Corporation on account of sale of paddy and wheat seeds at a lower than the prescribed rate. The show cause notice was admittedly served upon the petitioner after almost 10 months of on 13th August, 2004 and the petitioner submitted his reply in detail in respect of both the notice vide his letter dated 6th August, 2004 as in the meanwhile, he had already retired. In his reply to the show cause notice, petitioner categorically stated that he was not at all responsible for any sale or purchase of wheat or paddy seeds in respect of which a show cause notice had been issued to him. According to him, it is duty of Regional Manager to supply the wheat and paddy seeds in question only on demand being raised by the District Manager but in the instant case the supply was made by the District Manager to all the Regional Manager at his end and then seeds could not be sold on account of drought in the area and that resulted in unwarranted accumulation of seeds and ultimately seeds were sold under the order the Regional Manager at a price lower than prescribed at the various centres.
In a nutshell the reply was that petitioner was not involved in any way in the sale of seeds in questions and therefore, recovery was totally unwarranted and he has been wrongly siddled with liability towards loss occurred to the Corporation. After reply was submitted by the petitioner no further enquriy was held and if there was any in house enquiry, the petitioner was not informed and accordingly could not participate in the said enquiry. It is admitted position that there has been no departmental enquiry in the matter and ultimately order of recovery has bee passed on 19th January, 2005 adjusting the amount against security amounts of the petitioner.
The contention raised on behalf of the petitioner that since the petitioner has already retired, no recovery could have been made from post retirement dues of the petitioner without holding full fledged eqnuiry in the matter as it amounted to penalty. Secondly, the department did not record any finding whatsoever considering the reply of the petitioner as to how and in what manner petitioner was liable for the loss caused to the Corporation on account of sale of seeds at a lower price.
Learned counsel for the petitioner has drawn the attention of the Court towards circular which has been filed as annexure 15 to the writ petition dated 27th November, 2000 wherein vide clause 10 it is clearly provided that it is Regional Manger who is responsible for any sale or purchase of seeds.
Per contra, arguments advanced by counsel for the respondent is that in view of clause 9 of the said circular responsibility of Regional Manager and the District Manager are joint for ensuring that there is a complete sale to the tune of 100 percent of the seeds in the season and in view of any latches no entry of sale in time allowing accumulation and if sale was subsequently done and loss occurred on account of such sale, it will be liability of the both the officers and they will be jointly responsible for the same and, therefore, argument is that petitioner has been held responsible only towards 10 per cent of the loss whereas Regional Manager has also been fastened with liability of 10 per cent and 80 percent of the Center Incharge. In this connection counsel for the respondent has drawn attention of the Court towards chart dated 30th December, 2004, Annexure 2 to the counter affidavit as well circular dated 22nd May, 2000 which has been annexed as annexurre 3 to the counter affidavit.
Learned counsel for the respondent has also drawn the attention to the court to para 16 of the counter affidavit where it has been stated that District Manager and Regional Manager and other officers who were similarly charged had already made the deposits and it is the petitioner who has only not made deposit and liability being joint the petitioner therefore cannot escape the liability on the plea that he had been discriminated against.
In the instant case, learned counsel for the respondent has further pointed out that recovery is not against any post retirement dues . Recovery is against security amount which used to be deposited under circulars issued from time to time in respect of sale and purchase of seeds in question and it is admitted to the petitioner. It is kind of security which is only to safeguard and protect the interest of the corporation with regard to sale and purchase of the goods at the end of officer concerned while in service of the Corporation in relation to requirement that may be incurred at various sale centres and therefore, principle of general service law in respect of recovery from service dues may not be attracted and security money is kind of security only to make good the loss that may be caused only account of the fallible conduct of an employee.
Be that as it may, the question remains as to whether corporation is justified in forfeiting security amount without considering the reply of the petitioner as defence has been set up that he was not responsible in any manner whatsoever. The security money is a money which may have been taken against sale and purchase of goods but before seizing or forfeiting the amount of security it was duty incumbent upon the Corporation to record categorical finding of fact with regard to loss and culpability of the petitioner in such loss. Since there is no recovery from the post retirement dues and is also admitted to the petitioner, in the interest of justice the matter is remitted to the authority concerned to take fresh decision in the matter after considering the reply of the petitioner and recording cogent and convincing finding with respect to complicity of the petitioner in the conduct of negligence with regard to sale of the goods in question that resulted in the loss to the corporation.
In view of above, impugned order dated 19th January, 2005 is hereby set aside and the matter is remitted to the concerned respondent. The entire exercise shall be carried out by the concerned respondent no. 2 within a period of three months from the date of production of certified copy of this order. It will be open for the petitioner to submit explanation as he may require and may feel appropriate in defence of his claim.
The writ petition is accordingly partly allowed with the aforesaid observations and directions.
Order Date :- 25.4.2018 Sanjeev