Karnataka High Court
Sri. Ajjappa, S/O. Chikkanagappa, vs The Commissioner, Department Of on 29 August, 2012
Author: N.K. Patil
Bench: N.K. Patil
1
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 29TH DAY OF AUGUST, 2012
: PRESENT :
THE HON'BLE MR. JUSTICE N.K. PATIL
AND
THE HON'BLE MR. JUSTICE B.V.PINTO
Writ Petition Nos. 64911-12/2010 (S-KAT)
C/W
Writ Petition No.61320/2010
In W. P. Nos. 64911-12/2010
Between:
1. Sri. Ajjappa, S/O. Chikkanagappa,
Aged about 49 Years,
Working as Food Inspector,
Taluk Office, Hospet,
Dist: Bellary.
2. Sri. Basavaraj. M,
S/O. M.Channabasappa,
Aged about 57 Years,
Working as Assistant
Registrar/ Asst.Administrative Officer,
District Consumer Forum,
Kopal, Dist: Koppal.
... Petitioners
(By Shri. G.K.Hiregoudar, for
Shri. B B Bajentri, Advocate.)
2
And
1. The Commissioner, Department Of
Food and Civil Supplies,
Cunningham Road,
Bangalore - 560 052.
2. The Head quarter's Assistant &
Enquiry Officer,
O/O. The Deputy Commissioner,
Bellary District,
3. The Appellate Authority and
Principal Secretary to Government,
Department of Food and Civil Supplies,
Vikasa Soudha,
Bangalore - 560 001.
... Respondents
(By Shri. A.A.Pathan, Addl. Govt. Advocate.)
*****
These Writ Petitions are filed under Articles 226 and 227 of the Constitution of India, praying to quash the order dated:25/03/2009, passed by the KAT In A.No.2179- 2180/2007 (Annexure-A) in so far as it relates to the imposing the penalty of withholding one increment without cumulative effect. Etc. In W. P. No. 61320/2010 Between:
1. The Commissioner, Department of Food & Civil Supplies, Cunningham Road, Bangalore-52.
2. The Headquarters Asst. & Enquiry, Officer, O/O The Deputy Commissioner, Bellary District.3
3. The Appellate Authority & Secretary to Government of Karnataka Department of Food and Civil Supplies, Vikasa Soudha, Bangalore-01.
... Petitioners (By Shri. A.A.Pathan, Addl. Govt. Advocate.) And
1. Sri Ajjappa S/O Chikkanagappa , Aged about 46 Years, Occ: Presently Working as Food Inspector, Taluk Office Hospet, Bellary Dist.
2. M.Basavaraj S/O M.Channabasappa, Aged about 54 Years Occ: Presently Working as Asst. Registrar/Asst.
Administrative Officer, Dist.Consumer Forum, Koppal.
... Respondents (By Shri. G.K.Hiregoudar, for Shri. B B Bajentri, Advocate.) ***** This Writ Petition is filed under Articles 226 and 227 of the Constitution of India, praying to quash the order dated 25.03.2009 passed by the Karnataka Administrative Tribunal, Bangalore in application nos. 2179 and 2180/2007 copy of which is produced as Annexure-C. These Writ Petitions coming on for Final Hearing, this day, N.K. PATIL. J., made the following: 4
]O R D E R Petitioners in Writ Petition Nos.64911-912/2010 have sought for quashing the order dated 25th March 2009, passed by the Karnataka Administrative Tribunal in Application Nos.2179-2180/2007, vide Annexure-A, in so far as it relates to imposing the penalty of withholding of one increment without cumulative effect. Further, petitioners have sought to expunge the observation made in the order of the Tribunal dated 25th March 2009 and to allow the said applications.
Petitioners in Writ Petition No.61320/2010 have sought for quashing the order dated 25th March 2009 passed by the Karnataka Administrative Tribunal, Bangalore in Application Nos.2179 and 2180 of 2007 vide Annexure C to the said writ petition.
2. Facts in brief are that, the petitioners in W.P.Nos.64911-912/2010 had filed Application Nos.2179 & 2180 of 2007, before the Tribunal, assailing the correctness of the orders dated 3rd October 2002 5 passed by the Commissioner of Food and Civil Supplies/Disciplinary Authority and dated 18th January 2007 passed by the Principal Secretary to Government and Appellate Authority. The Tribunal, in turn, after hearing both sides, after considering the material available on file, and after going through the Inquiry Report, submitted by the Inquiry Officer, allowed the Applications in part and modified with the penalty imposed on each petitioner into that of penalty of withholding of one increment without cumulative effect, holding that the petitioners are technically liable for misconduct. Further, the Tribunal quashed the direction of the Disciplinary Authority dated 3rd October 2002 to recover an amount of `8,48,797-80 from each petitioner and also the order of the Appellate Authority dated 18th January 2007, directing recovery of `1,00,000/- from each petitioner, instead of `8,48,797-
80. Further, it also observed that if any amount is already recovered from any of these petitioners in furtherance of the orders of the Disciplinary Authority 6 or Appellate Authority, the same shall be refunded to the concerned petitioner and the pay of the petitioners shall be re-fixed in accordance with the modified penalty. Being aggrieved by the portion of the impugned order passed by the Tribunal, the petitioners are before this Court seeking to set aside the imposing of penalty of withholding of one increment without cumulative effect.
3. First petitioner is working as Food Inspector at Hagaribomanahalli Taluk of Bellary District, during the year 1998-99 and the second petitioner is working as Sheristedar (Food) in the same Taluk. A Departmental inquiry was initiated against the first petitioner and a charge memo dated 11th April 2000 was issued on the charge that between the period from June 1998 to June 1999, he modified the allocation of kerosene stock by the Deputy Commissioner and re-allocated additional stock of kerosene in contravention of quantity fixed per ration-card and thereby giving scope for the misuse of the kerosene meant for public distribution system by 7 Fair Price Depots and retail vendors. The second charge was that he had obtained the approval of Tahsildar for allocation of additional kerosene of 3.09 lakh litres to the 12 Fair Price Depots during the above period, in contravention of the allocation by the Deputy Commissioner; The third charge was that he had cut down the quantity of kerosene allocated on account of leakage from specific whole-sale dealers of kerosene and distributed the same to other dealers. Further, he was charged for not taking action regarding the distribution of saffron-cards in respect of the two villages allotted to him.
4. The second petitioner was charged by issuing a show cause notice dated 11th April 2000, with unauthorized distribution of kerosene meant for PDS in excess of scale of the ration-cards to the extent of 3.09 lakh litres between June 1998 to June 1999 and the distribution norms to twelve Fair Price Depots (FDPs) and without the guidelines regarding the distribution of additional quantity, thereby giving scope for diversion 8 and misuse of kerosene meant for the PDS. He was also charged with failure to supervise the distribution of kerosene in ten FPDs, entrusted to his direct supervision and also failure to distribute the saffron cards in respect of three villages allocated to him. Since the petitioners denied the charges levelled against them, a Departmental Inquiry was conducted. The Inquiry Officer after conducting inquiry and after affording opportunity to the petitioners, has recorded that charges 1, 2 and 3 against the first petitioner are proved and the fourth charge is not proved. With regard to the second petitioner, he held that first and second charges are proved and that the third charge regarding failure to distribute the saffron cards is not proved. Thereafter, the Inquiry Report along with the show cause notice was issued to the petitioners to have their say in the matter. After receipt of the Inquiry Report, petitioners filed a detailed reply vide Annexures A15 and 12, respectively to the Applications filed by them before the Tribunal. The first respondent/Disciplinary Authority, 9 after considering the Inquiry Report and the reply filed by the petitioners, imposed on the petitioners the penalty of withholding of four annual increments with cumulative effect by its order dated 3rd October 2002 and also held that both the petitioners were responsible for the misuse of 3,32,210-05 litres of kerosene meant for PDS, the difference between the PDS and the open market rate of kerosene amounting to `16,92,595-50 to be recovered equally from the petitioners.
5. Being aggrieved by the said order passed by the first respondent/ Disciplinary Authority, petitioners herein filed the appeal before the Appellate Authority.
The Appellate Authority, after considering the grounds urged in the memorandum of appeal filed by the petitioners, has passed the order dated 18th January 2007, concluded that the Tahsildar and the FPDs were also involved in the misconduct and it partly allowed the appeal by reducing the recovery to `1,00,000/- from each of the petitioners. Being aggrieved by the said orders passed by the Disciplinary Authority as well as 10 the Appellate Authority, the petitioners filed Application Nos.2179 and 2180 of 2007 on the file of the Karnataka Administrative Tribunal, at Bangalore. The said matter had come up for consideration before the Tribunal and the Tribunal, in turn, after hearing both the parties and their counsel and after going through the Inquiry Report submitted by the Inquiry Officer and the orders passed by the Disciplinary Authority and the Appellate Authority, specifically with reference to the letter issued dated 21st September 1998 to the Deputy Director of Food and Civil Supplies, seeking additional allocation of 25 Kilo-litres of kerosene in order to meet the demands of the families of non-card holders for kerosene, allowed the Applications filed by the petitioners in part and modified the penalty as referred above. Not being satisfied with the order impugned passed by the Tribunal, both the petitioners felt necessitated to present these petitions.
6. Shri. G.K. Hiregoudar, learned counsel appearing for petitioners, appearing along with 11 Shri.B.B. Bajentri, in Writ Petition Nos.64911- 912/2010, at the outset submits that there is no fault on the part of the petitioners inasmuch as when they were working as Food Inspector and Sheristedar respectively, on the basis of the instruction and authorization given by the then Tahsildar, they have distributed kerosene oil, by re-allocated and withdrawing from the BPL card holders to non card holders, to the meet the excess demand of kerosene oil. The said instruction has been followed only on the basis of the communication issued by the Deputy Director of Food and Civil Supplies vide Government letter dated 21st September 1998 and also second communication dated 12th February 1999 by the Tahsildar, wherein the Tahsildar has requested for permission to continue the existing arrangement of re-allocation of Kerosene meant for certain villages where there is no demand, to the Taluk Headquarters and other large villages for the families without the ration-card. The Appellate Authority has modified the order, imposing penalty of 12 `1.00 lakh instead of `8,48,797-80 and withholding of four annual increments with cumulative effect imposed on the petitioners. The same has been rightly taken into consideration by the Tribunal and after thorough verification of the relevant material available on file and after hearing the counsel appearing for the respondents and considering the stand taken in the objections, modified the penalty imposed by the Appellate Authority, with that of withholding of one increment without cumulative effect in place of withholding of four increments, as ordered by the Appellate Authority. The same cannot be sustained and it is liable to be vitiated.
7. Per contra, learned Additional Government Advocate appearing for respondents in Writ Petition Nos.64911-912/2010 and petitioners in Writ Petition No.61320/2010, inter alia, contended and submitted that the Appellate Authority as well as the Tribunal have committed error in passing the impugned orders. It is prima facie on the basis of the report submitted by the Inquiry Officer that the Disciplinary Authority has 13 come to the conclusion that there is misuse of powers in distribution of kerosene, on the basis of the alleged oral instruction by the Tahsildar. Further, it is the case of the respondents that the petitioners being entrusted with the responsibility of supervising certain FPD shops within the Taluk and smooth distribution of Food grains and kerosene, cannot be fully absolved of the responsibility in the system. Admittedly, the petitioners have misused the powers in diverting the kerosene oil meant for public distribution system to the BPL card holders from rural areas to urban areas, which is contrary to the relevant provisions of the PDS Control Order, 1992. This aspect of the matter has not been looked into nor considered nor appreciated but on technical ground they have exonerated the petitioner from penalty of withholding of four increments without cumulative effect and recovery of `8,48,797-80 from each petitioner to that of withholding of only one increment without cumulative effect. Neither the Appellate Authority nor the Tribunal has considered 14 this aspect in proper perspective. Therefore, he submits that the impugned order passed by the Tribunal is liable to be set aside and confirm the order passed by the Inquiry Officer and the Disciplinary Authority.
8. After considering the rival submission of the learned counsel appearing for both parties and after perusal of the order impugned passed by Tribunal, we do not find any error or material irregularity as such committed by Tribunal, resulting in serious miscarriage of justice, as such, as pointed out by the learned Additional Government Advocate, appearing for respondents in W.P.Nos.64911-912/2007 and for petitioners in W.P.No.61320/2007. It is significant to note that the Tribunal, after due consideration of the Inquiry Report submitted by the Inquiry Officer and the orders passed by the Disciplinary Authority and the Appellate Authority has specifically observed at paragraphs 15 and 16 of its order that, in pursuance of the letter issued by the Deputy Director of Food and Civil Supplies dated 21st September 1998, seeking 15 additional allocation of 25 Kilo-litres of kerosene in order to meet the demands of the families of non-card holders for kerosene, vide Annexure A1 and the letter dated 12th February 1999 by the Tahsildar vide Annexure A2, requesting for permission to continue the existing arrangement of re-allocation of kerosene meant for certain villages where there is no demand, to the Taluk Headquarters and other large villages for the families without the ration card. Having regard to the fact that the petitioners have acted upon the instructions of their higher authorities, the Appellate Authority has reduced the penalty on both the petitioners by reducing the recovery of amount to `1.00 lakh, from each of the petitioners.
9. The Appellate Authority, after hearing the learned counsel appearing for parties, and after going through the Inquiry Report as also the order passed by the Disciplinary Authority observed that the distribution of kerosene under the public distribution systems meant for the Below Poverty Line (BPL) families to whom 16 subsidized rates are fixed and a diversion of this kerosene to the non ration card holders would be depriving the social objective of providing sustenance to the poorer families and as the very act of the diversion of kerosene meant for PDS is in violation of the norms, it amounts to misconduct being in violation of the laudable objective of the Government in providing assistance to the poorer sections of the society. Further, the Tribunal observed that the report of the subsequent Tahsildar, on verification, confirmed that the kerosene allotted had been actually distributed and that there was no misuse of allotment or diversion and the said report of the subsequent Tahsildar further confirms that the acts of the petitioners was in furtherance of the direction of the then Tahsildar and that the said direction was in order to solve the local problems in distribution of kerosene. Having thus observed, the Tribunal came to the conclusion that the lapse on the part of the petitioners is only technical, i.e. they ought to have taken the instructions of the 17 Tahsildar in writing and they ought to have in the subsequent distribution waited for the approval of the Deputy Commissioner.
10. Further, so far as the direction to recover the alleged loss is concerned, the Tribunal observed that the petitioners cannot be held responsible for the diversion or re-allotment in the absence of materials to show that they did these acts on their own and opined that the recovery of a sum of either `8,48,797-80 as ordered by the Disciplinary Authority or a sum of `1.00 lakh by the Appellate Authority are not justifiable. In that view of the matter, the Tribunal opined that a minor penalty of withholding of one increment without cumulative effect would have been sufficient in respect of the misconduct by the petitioners. Accordingly, the Tribunal allowed both the applications filed by petitioners in part and modified the penalty imposed on each petitioner with that of penalty of withholding of one increment without cumulative effect and quashed the direction to recover a sum of `1.00 lakh from each of the petitioners and 18 directed that if any amount is recovered from any of the petitioners, in furtherance of the orders of the Disciplinary Authority or Appellate Authority, the same shall be refunded to the concerned petitioner and the pay of the petitioners shall be re-fixed in accordance with the modified penalty. The discussion made and the reasoning given for arriving at such a conclusion by the Tribunal is just and proper and we do not find any justification or good ground to interfere in the well considered order passed by the Tribunal.
11. Having regard to the facts and circumstances of the case, the writ petitions filed by petitioners are liable to be dismissed as devoid of merits and accordingly, they are dismissed.
Sd/-
JUDGE Sd/-
JUDGE BMV*