Orissa High Court
Ashok Kumar Patra vs Managing Director T.D.C.C.O.L. And ... on 20 April, 2017
Author: B.R. Sarangi
Bench: B.R. Sarangi
HIGH COURT OF ORISSA : CUTTACK
W.P.(C) NO. 1124 OF 2006
In the matter of an application under Articles 226 and 227 of
the Constitution of India.
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AFR
Ashok Kumar Patra ........ Petitioner
-Versus-
Managing Director ......... Opp. Parties
T.D.C.C.O.L.,
and others.
For petitioner : M/s. Dhuliram Pattnaik,
S. Pattnaik, L.K. Pattnaik,
N. Biswal and I.K. Rath,
Advocates.
For opp. parties : M/s. (Ms.) S.L. Pattnaik and
H. Champati,
Advocates.
(O.Ps. no.1, 2 and 4)
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PRESENT
THE HON'BLE DR. JUSTICE B.R. SARANGI
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Date of argument: 12.04.2017 : Date of Judgment: 20.04.2017
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DR. B.R. SARANGI, J. The petitioner, who was working as a Shop
Supervisor under the Tribal Development Cooperative Corporation of
Orissa Ltd. (TDCCOL) has filed this application to quash the order
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dated 09.03.2005 in Annexure-7 passed by the Managing Director, by
which liability has been fixed on the petitioner which shall be
recovered from his salary and consequential letter dated 24.12.2005
in Annexure-10, rejecting his representation with regard to allowing
drying charges as per the circular dated 12.04.1991.
2. The factual matrix of the case is that the petitioner while
working as a Shop Supervisor served with notice dated 29.04.2003
(Annexure-1) by the Branch Manager, TDCCOL, Muniguda to deposit
a sum of Rs.1,03,687.30, which was outstanding against him on
account of Mohua flower, failing which recovery of Rs.2105/- per
month would be effected from his monthly salary of April, 2003.
Though the petitioner filed representation on 14.05.2003 (Annexure-
2), due to non-consideration of the same, he approached this Court
by filing W.P.(C) No.13033 of 2004. By order dated 16.12.2004 this
Court disposed of the said writ petition directing the Managing
Director to consider the representation of the petitioner within two
months from the date of receipt of representation. It was further
directed that till the matter was disposed of, the order of recovery of
Rs.1,03,687.30 from the petitioner and recovery of Rs.2105/- from
his monthly salary be kept in abeyance. In compliance of the same,
the petitioner filed a representation before the Managing Director on
20.12.2004(Annexure-5), but the same was rejected by order dated 09.03.2005 (Annexure-7). Thereafter, the petitioner had filed a review application on 17.03.2015 (Annexure-9), but the Managing 3 Director rejected the same on 24.12.2005 in Annexure-10 without assigning any reason, hence this application.
3. Mr. N. Biswal, learned counsel for the petitioner submitted that the determination made for recovery of Rs.1,03,687.30 is de horse the letter no.3273 dated 25.03.1991 of the head office, wherein guidelines have been prescribed for procuring, storing of mohua flower and making expenditure towards procured mohua flower. The said letter clearly indicates that drying charges should be Rs.1.50 per quintal. If the drying charges are calculated at such rate, then the amount for recovery, as directed, cannot be payable by the petitioner. It is further submitted that, while considering the representation of the petitioner, it was reported by the Branch Manager in letter dated 28.02.2005 that drying charges have not been allowed to any other employees in-charge of procurement during the relevant year. In view of the above clarification, the petitioner cannot claim a special dispensation in his favour and accordingly vouchers against serial nos. 2 to 4 have been justifiably disallowed. More so, the authority, while considering the representation for allowing drying charges relating to collection of mohua flower in Sundergarh Branch, rejected the same with a bald order without assigning reasons, therefore the subsequent explanation given in the counter affidavit cannot be taken into consideration, when the order impugned does not speak for itself. 4
4. Ms. S.L. Pattnaik, learned counsel for the opposite parties contended that as per the decision taken pursuant to the proceeding of the meeting held on 21.03.1991, it was decided to collect mohua flower directly from tribals more than three lakhs quintals in a period of about 11 months. So far as collection of mohua flower in Sundargarh district is concerned, it was fixed to one lakh quintal. It is stated that all the Branch Managers, including the Branch Manager of Sundargarh, were present in the meeting on 21.03.1991 and agreed to collect dry stock of mohua flower vide letter dated 1.5.1991, wherein it was clarified that in no circumstance mahua flower stock, which was not properly dried, should be purchased. In such view of the matter, special direction was given for purchase of dried mahua flower. Accordingly, vide letter dated 12.04.1991, intimation was issued to all the Branch Managers to ensure that mahua flower other than fully dried stock should not be accepted and that there should be proper drying of mahua flower before the same are consigned to central godowns. The petitioner, being a Shop Supervisor, having not adhered to the said letter, direction was issued to collect an amount of Rs.1,03,687.30 from his salary by way of instalment as fixed per month. Consequentially, no illegality or irregularity has been committed by the authority in passing the order so as to warrant interference of this Court.
5. There is no dispute that the petitioner was working as a Shop Supervisor under the opposite party-Corporation and he was in- 5 charge of collection of mohua flower. Admittedly, when he was in- charge of collection of mohua flower, regarding collection of mohua flower during the years 1990, 1991 and 1992, a meeting was held in the Chamber of the President, TDCCOL on 21.03.1991, and certain decisions were taken on shortages of mohua flower on account of driage as well as on incidental expenses. In the proceedings of the said meeting, under items No.9 and 10 the following decisions were taken:
"9. DRYING & DETERMINATION OF SHORTAGE ON ACCOUNT OF DRIAGE In order to ensure that stocks remain in good condition and it fetches better price, fully dry stock should be kept in storage godowns. Even though we should procure only dry and aloan stock in all probability, it would be necessary to redry the stock before storing the same in storage godown. It was decided that only dry stock of Mohua Flower will be procured and soon after procurement the stock will be brought to the storage godowns and handed-over to the employee incharge of the storage godown. This stock will then be dried for few days. After discussion, it was suggested that the following shortage is to be allowed towards driage.
i. Shortage of procurement point to
Central Godown 1%
ii. drying at Central Godown
3%
iii. storage shortage 1%
For each month of storage
Driage as allowed above shall be subject to actual checking in the field. It was impressed to Divisional Manager/Branch Managers that only fully dried stock should be kept in the godown. In case fully dried stock is not kept in the godown, godown incharge as well as Branch Manager will be held responsible.
Further, clause-10 of the discussion states as follows:-
10. INCIDENTAL EXPENSES After detailed discussion ceiling for incidental expenses was fixed.
Details of incidental expenses is as below:
i. bagging & stitching at procurement centres Rs. 0.80 P.Q. ii. loading at procurement centres Rs. 0.80 P.Q. iii. unloading at central godown Rs. 0.80 P.Q. iv. weighing at Central Godown Rs. 0.80 P.Q. v. drying charges Rs. 1.50 P.Q. 6 vi. Transportation Rs. 8.00 P.Q. vii. Gunny bag Rs. 6.00 P.Q. viii. Commission to be paid to LAMPCS collection mates Rs. 1.70 P.Q. ix. hire charges of vehicles & P.O.L. Rs. 0.50 P.Q. x. Stationary/postage, advertisement etc. Rs. 0.25 P.Q. TOTAL Rs. 21.15 P.Q."
As would be evident from the aforementioned decision, it has been clearly specified under sub-item (ii) of item-9 that towards drying at central godown, shortage of 3% is to be allowed. As per sub item-(v) of item-10, drying charges of Rs.1.50 per quintal towards incidental expenses are to be borne by the Corporation and, as such, direction was given to the Managing Director to ensure that incidental expenses be kept within the ceiling as fixed in the proceeding itself.
6. The contention raised by learned counsel for the petitioner is that the incidental expenses towards the drying charges of Rs.1.50 per quintal have not been taken into account by the authority, while determining the amount of Rs.1,03,687.30 as against the petitioner. This Court while entertaining this writ application passed order on 28.07.2014 directing the opposite parties to file affidavit whether the circular issued on 12.04.1991 vide Annexure-6 has been superseded/modified/clarified by the circular dated 1.5.1991 in Annexure-L. In compliance of the said order, an affidavit has been filed on 20.03.2015, wherein nothing has been spelt out with regard to the supersession of the circular dated 12.04.1991. On the other hand, by filing the proceeding of meeting, regarding collection of mohua flower during the years 1990, 1991 and 1992, 7 held on 21.03.1991, the opposite parties have justified that the drying charges of Rs.1.50 per quintal towards incidental expenses are to be kept within the ceiling. Nothing has been produced before this Court to show that, while determining the amount as against the petitioner, the drying charges as stated in sub-item(v) of item-10 has ever been taken into consideration by the authority concerned. The contention of learned counsel for the petitioner is that if this drying charges of Rs.1.50 per quintal are taken into account, along with the drying charges at central godown @3% which was allowable towards shortage, then the petitioner is not liable to any amount as claimed in the impugned order.
7. In view of such position, in absence of any material before this Court that sub-item(ii) of item-9 and sub item (v) of item- 10, as mentioned supra, have to be taken into account for determination of the liability against the petitioner, this Court is of the considered view that the authority has committed gross error apparent on the face of the record in levying the amount of Rs. 1,03,687.30 as against the petitioner. Apart from the same, the order dated 24.12.2005 passed by the Managing Director and communicated by the Manager (Finance & Audit), on consideration of the representation filed by the petitioner on 17.03.2005, is a non- speaking order and, as such, the representation of the petitioner has been rejected without assigning any reason.
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8. Franz Schubert said-
"Reason is nothing but analysis of belief."
In Black's Law Dictionary, reason has been defined as a-
"faculty of the mind by which it distinguishes truth from falsehood, good from evil, and which enables the possessor to deduce inferences from facts or from propositions."
It means the faculty of rational thought rather than some abstract relationship between propositions and by this faculty, it is meant the capacity to make correct inferences from propositions, to size up facts for what they are and what they imply, and to identify the best means to some end, and, in general, to distinguish what we should believe from what we merely do believe.
9. In Union of India v. Mohan Lal Capoor, AIR 1974 SC 87 it has been held that reasons are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject-matter for a decision whether it is purely administrative or quasi-judicial and reveal a rational nexus between the facts considered and conclusions reached. The reasons assure an inbuilt support to the conclusion and decision 8 reached. Recording of reasons is also an assurance that the authority concerned applied its mind to the facts on record. It is vital for the purpose of showing a person that he is receiving justice. 9
Similar view has also been taken in Uma Charan v. State of Madhya Pradesh, AIR 1981 SC 1915.
10. Reasons being a necessary concomitant to passing an order, the appellate authority can thus discharge its duty in a meaningful manner either by furnishing the same expressly or by necessary reference to those given by the original authority.
Similar view has also been taken in Patitapaban Pala v. Orissa Forest Development Corporation Ltd. & another, 2017 (I) OLR 5 and Banambar Parida v. Orissa Forest Development Corporation Limited and others, 2017 (I) OLR 625.
11. The affidavit filed by opposite party justifying the reasons is not permissible because the order passed by the authority on 24.12.2005 (Annexure-10) is without assigning reasons. Therefore, the same is not tenable in the eye of law.
12. The apex Court in Gordhandas Bhanji, AIR 1952 SC 16 held as follows:
"Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself."
13. The Constitution Bench of the apex Court in Mohinder Singh Gill v. The Chief Election Commissioner, New Delhi, AIR 1978 SC 851 held :
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" ...... when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out."
Orders are not like old wine becoming better as they grow old.
14. In view of the aforesaid facts and circumstances, this Court is of the considered view that the demand raised against the petitioner by the authority for an amount of Rs.1,03,687.30 and direction for recovery of the same in monthly installments, as well as rejection of representation of the petitioner, having been made without assigning reasons, cannot sustain in the eye of law and deserve to be quashed. Accordingly, the direction for recovery of Rs.1,03,687.30 with instalment of Rs.2105/- per month in Annexure- 1 dated 29.04.2003 and consequential rejection of representation in Annexure-10 dated 24.12.2005, are hereby quashed. The matter is remitted back to the authority concerned to reconsider and determine the liability of the petitioner in the light of the observation made above.
15. The writ petition is accordingly allowed to the extent indicated above. No order to cost.
Sd/-
(DR. B.R. SARANGI )
JUDGE
The High Court of Orissa, Cuttack True copy
Dated the 20TH April, 2017/Ashok/GDS
Sr. Secretary