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CASE NO.: Review Petition (civil)  285 of 2007

PETITIONER: Nahar Singh

RESPONDENT: Food Corporation of India & Ors

DATE OF JUDGMENT: 31/03/2008

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T REPORTABLE

REVIEW PETITION (C) NO.285 OF 2007 IN CIVIL APPEAL NO 2273 OF 2008 (Arising out of SLP (C) No.20341 OF 2005)

S.B. Sinha, J.

1.      Order dated 12.2.2007 is recalled. 2.      Leave granted. 3.      Appellant was an Assistant Grade-III (AG-III) in one of the Food  Storage Depots of Food Corporation of India.  295 bags of wheat and 195  bags BTB Class gunny bags were found missing when special physical  verification was conducted by the physical verification squad during the  period 7.1.1980 and 22.1.1980. 4.      One Bhoop Singh was the unit in-charge of the godown.  Appellant,  Rattan Singh and one Kunwar Singh were working thereat as the Assistant  Grades Clerk.  Shortages in the said depots were suspected.  The godowns  were sealed.  Physical verifications were made by Physical Verification  Squad (PVS).  Stock checking exercises were carried out in the said godown  during the period 7.1.1980 to 22.1.1980.  295 bags of wheat and 195 bags of  gunnies in Unit No.1 of which Bhoop Singh was the in-charge, were found  short.   The contents of the vigilance report were verified by one Shri  Panchhi.  Apart from Bhoop Singh, Nahar Singh and Kunwar Singh were  posted there.  Shortages and excesses were found in 12 stacks of wheat.  The  total shortages were found to be 295 bags of wheat and the excess amounted  to 11 bags only.  Whereas shortages were found on the top layers of the  stacks which were not visible from the ground, except Stack No.4/16 and  1/11, which were from partly used stacks.   5.      Disciplinary proceedings were initiated against the aforementioned  Bhoop Singh and others.   The imputation of charges drawn against the appellant were on the  basis of the report of the said inspection carried out by the vigilance  department as also the one submitted by Shri I.d. Nautial, Assistant Manager  (Vigilance) containing compilation of the statements made by the entire staff  of the Food Storage Depot, Sahibabad.  Appellant was found guilty of the  charges on the basis of the report of the enquiry officer which was submitted  before the disciplinary authority.  The disciplinary authority, by an order  dated 18.4.1986 imposed the penalty of compulsory retirement from services  of the Corporation.  A departmental appeal preferred thereagainst was  dismissed by the Appellate Authority in September 1986.  A review  application filed thereagaisnt was also dismissed on 22.11.1987.   6.      Appellant thereafter filed a writ petition before the High Court of  Judicature at Allahabad, Lucknow Bench, Lucknow which by reason of the  impugned judgment dated 17.5.2005 has been dismissed.

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7.      Mr. Mishra, learned senior counsel appearing on behalf of the  appellant, would contend that from a perusal of the enquiry report, it would  be evident that the appellant had been held responsible for the shortages only  on the ground that he had not informed thereabout to the appropriate  authority and in that view of the matter the impugned judgment is wholly  unsustainable.  The learned counsel would urge that all the officers  concerned have found only Bhoop Singh responsible for the shortages and  the appellant had been proceeded against in only on surmises and  conjunctures.  It was urged that the disciplinary authority had passed the  impugned order without any application of mind and, thus, the same is liable  to be set aside. 8.      We may notice that the special leave petition filed by Bhoop Singh  has been dismissed summarily by an order dated 12.2.2007.  9.      The SLP preferred by the appellant was also listed on the same day  but as nobody had appeared, the said special SLP was dismissed for default.   Appellant filed an application for review alleging that he, as also his lawyer,  was misled in view of the fact that the matter was shown to be listed on  19.2.2007 as per COURTNIC enquiry.  We had called for a report from the  Registry of the Supreme Court and it appears that the contention of the  appellant was not correct.  It furthermore appears that the parties had been  given notice with regard to the date of listing of the matter. 10.     We have, however, entertained the review application and heard the  appellant on merits. 11.     It may be true that Bhoop Singh was in-charge of the godown but the  manner in which the shortages have occurred categorically goes to show that  it could not have been possible without the active support and/or connivance  of the appellant and other staff.  Whereas in the report of Shri I.D. Nautial,  full responsibility for shortage of 195 gunnies was placed on Bhoop Singh,  as regards shortages of 295 bags of wheat, it was stated : "Keeping in view the general observation and  various statements, the involvement of Unit In  charge, AM (Depot) besides some Unit No.1 Staff  and watchman may not be ruled out."

12.     Before the enquiry officer, the report of Shri Panchhi was proved.  He  was examined as a witness on behalf of the department.         In his report, inter alia, it was held by the enquiry officer : "(C)    Shri Nahar Singh is also one of the officials  who did not want the P.V. to be done by  ’breaking of stacks’ and had objected to it.   This is the statement of Shri H.S. Panchhi  during cross examination by Shri Suraj  Bhan, AM(D) and Shri Bhoop singh Unit In- charge. (D)     The way shortage have been noticed ruled  out theft because shortages/excess were  detected by the P.V. team in 12 different  stacks in 4 different Chambers (and top  layers were so rearranged that on periphery  no shortages were visible until some one  went to the top of the stack).  The thieves  would not operate in such a way nor it is  possible for Unit In-charge alone to create  shortgages in 12 different stacks in 4  different chambers all alone without the  knowledge and active involvement of his  unit staff. (E)     The Joint representation by the Unit In- charge and his staff including the C.O. that  keys of the godown was kept in the table  drawers of the AM(D) is another proof of  their connivance.  This plea is not  convincing and has been apparently made to  absolve themselves from the status of

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custodian and the responsibility for the  shortages in stacks.  The joint representation  dated 22.1.1980 is one of the Annexure of  Exb.P-3 and P.W. has been cross examined  in the last para of the proceedings at page 4.   The reasons why the ’key-theory’ does not  hold ground are as under : (1) to (3)      \005\005. (4).    Also, it is interesting that such a letter  should have been drafted on 22.1.1980, that  is, the day when the PV was concluded.   This statement by Shri Bhoop Singh, AG-I  (D) is nothing but an after thought in  connivance with his staff to involve Shri  Suraj Bhan, AM(D).  To my mind after Shri  Bhoop Singh and company had come to  realize that being the custodian as well as  operating staff they will be held responsible  for such huge losses to the Corporation, they  thought that the responsibility may be  shifted on AM (D) if they could jointly  allege that all keys of FSD, Sahibabad used  to be kept in the custody of the AM(D).  But  as already stated above, they have failed to  influence Shri Panchhi because Shri Panchhi  has not only denied receipt of this  photocopy letter dated 22.1.1980 but he has  categorically stated that "the keys of the  godowns are kept in the custody of godown  In-charge himself."

13.     It was concluded that the appellant was also responsible for shortages  of 295 bags of wheat.  It is, therefore, not correct to contend that the  appellant had nothing to do with the shortages of wheat.  His conduct during  the raid, as also the manner in which the shortages have occurred, clearly go  to show that without his active support, Bhoop singh alone could not have  caused the said misconduct. 14.     We, therefore, are of the opinion that the report of the enquiry officer  cannot be said to be perverse or unreasonable.  Furthermore, the order of the  disciplinary authority has been affirmed by the appellate authority.  A  review petition filed by the appellant has also been dismissed by the  appropriate authority..  The High Court also, by reason of the impugned  judgment, has also rightly refused to interfere in the matter. 15.     We, keeping in view the materials placed before us, are of the opinion  that no cause has been made out to differ with the said findings.   16.     The appeal, therefore, is dismissed but with no order as to costs.