IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.W.P. No. 7284 of 2008 DATE OF DECISION : 16.04.2009 Ravel Singh .... PETITIONER Versus State of Haryana and others ..... RESPONDENTS CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL Present: Mr. Ashok Khubbar, Advocate, for the petitioner. Ms. Sushma Malik, Addl. A.G., Haryana, for respondent No.1. Mr. Rajesh Garg, Advocate, for respondents No.2 to 5. * * * SATISH KUMAR MITTAL , J. After putting in 23 years of service, the petitioner retired from the Kaithal office of the Haryana State Federation of Consumer's Cooperative Wholesale Stores Limited (CONFED) (hereinafter referred to as `the Federation') from the post of Storekeeper on 30.11.2004. After his retirement, the amounts of gratuity and leave encashment were not released to the petitioner. On his representation, vide letter dated 13.6.2005 (Annexure P-3), an amount of Rs. 2,81,511/- was sanctioned for release to the petitioner towards gratuity and leave encashment. However, CWP No. 7284 of 2008 -2- subsequently out of the said amount, an amount of Rs. 95,542/- was released to the petitioner and the remaining amount of Rs.1,85,969/- was withheld till the decision of the case of less gain of wheat for the crop years 2002-03 and 2003-04 by the Head Office. The petitioner sent a representation to the respondents asking them to intimate as to on what basis the aforesaid amount was withheld, because till the date of his retirement, neither any show cause notice was ever issued to him nor he was provided any opportunity of hearing before withholding of the said amount. When the petitioner did not get any response, he filed CWP No. 16833 of 2005. After issuing notice of motion in that writ petition, respondent No.2 issued a show cause notice dated 10.2.2006, in which the petitioner was held responsible for having caused loss of Rs. 1,24,013/- to the Federation on the basis of the instructions dated 27.7.1999. The petitioner filed a detailed reply (Annexure P-6) to the said show cause notice. This Court vide order dated 29.11.2007 (Annexure P-8) disposed of the aforesaid writ petition with a direction to respondent No.2 to take a final decision on the said show cause notice by giving a personal hearing to the petitioner. In compliance with the said direction, respondent No.2 vide order dated 7.2.2008 (Annexure P-10) held the petitioner responsible for 70% of total less gain of 282.13 quintals, amounting to Rs.1,85,969/-, while observing as under : “I have gone through the show cause notice issued to Shri Ravel Singh, Storekeeper vide letter No. 17387-89 dated CWP No. 7284 of 2008 -3- 10.2.2006, reply submitted by him, judgment of the Hon'ble Punjab & Haryana High Court dated 29.11.07 and the reports of less gain submitted by DM, Confed, D.O. Kaithal in detail and found that Shri Ravel Singh was the incharge of wheat storage godown Pundri during the year 2002-03 and 2003-04. It was his duty to maintain the health of the wheat stock properly and give the storage gain of wheat as per the norms fixed by the Govt./Confed. He was required to give the gain as per norms fixed by the Director, Food & Supplies, Haryana vide letter No. SS-II-99/11292 dated 29.4.99, which were made applicable to all the procuring agencies. Since Shri Ravel Singh was holding the charge of wheat godown independently and there was no 2nd storage incharge, therefore, he was responsible for less gain of 70% of the total less gain as per instruction issued to all Dms of the Confed dealing with the wheat procurement vide letter No. WP/AST/ 23085-126, dated 14.3.2003. The contention of Shri Ravel Singh that gain is not in the control of the stock incharge and it depends upon the moisture conditions has no merit and is not maintainable because the gain in wheat depends on the proper maintenance of wheat stock. Therefore, in view of the above observations, I hold that reponsible for 70% of total less gain of 282.13 quintals amounting to Rs. 1,85,969/- in view of the instructions issued by the office vide letter No. W/AST/23085-126, dated 14.3.2003 and order to adjust the amount of less gain against his pending retiral benefit of Rs. 1,85,969/-.” The petitioner has challenged the said order in the instant petition on the following two grounds : CWP No. 7284 of 2008 -4- (a) The petitioner did not cause any loss to the Federation, as there was no decrease in the stocks. In this regard, it has been averred that as per the show cause notice, in the crop year 2002-03, the petitioner was given the custody of 135659.25 quintals of wheat and he delivered 137246.79 quintals of wheat to the Federation. Thus, the petitioner had given an increase of 1587.54 quintals of wheat. Similarly, in the crop year 2003-04, the petitioner was given the custody of 31917 quintals of wheat, whereas he delivered 32139.48 quintals of wheat, meaning thereby he had given an increase of 222.48 quintals. It is averred that from the show cause notice, it is clear that in both the crop years, the petitioner had given an increase of 1810.02 quintals of wheat, whereas according to the respondents, on the basis of the Government instructions dated 29.4.1999 and the Confed letter dated 14.3.2003, the petitioner should have given 137311.42 and 32356.98 quintals of wheat for the crop years 2003 and 2004, respectively. Thus, the petitioner was held responsible for giving less gain to the extent of 282.13 quintals of wheat, valuing Rs. 1,85,969/-. (ii) The instructions fixing the norms regarding excess gain in wheat by the State Government, which were circulated to the various procuring agencies, like Markfed, FCI, Confed etc., came up for consideration before this Court in CWP No. 12950 of 1999. This Court, vide its order dated 14.9.2000 (Annexure P-12), quashed the norms (Annexure P- 13), in view of the earlier decision rendered in CWP No. 3209 of 1993 dated 20.6.1994. CWP No. 7284 of 2008 -5- In the written statement, filed on behalf of respondents No.2 to 5, the aforesaid factual position mentioned in para 14 of the writ petition, has not been controverted. However, learned counsel for the respondents, during the course of arguments, submitted that the respondents have calculated the amount in question on the basis of the norms of recovery on account of less gain of wheat stocks fixed by the respondent Federation vide its memo dated 14.3.2003 (Annexure R-2/5). A reading of the said memo reveals that the amount of less gain of wheat stocks can be recovered from different officials in a ratio prescribed in this letter. Learned counsel submitted that in terms of the norms fixed by the Director, Food and Supplies, Haryana, vide circular dated 29.4.1999, which were made applicable to all the procuring agencies, the petitioner has been held responsible for less gain of 282.13 quintals. Undisputedly in the instant case, the wheat stock was not found less. But it was less gain according to the instructions dated 29.4.1999 and 14.3.2003. The weight of the wheat stock was increased by 1587.54 quintals + 222.48 quintals. During the course of hearing, learned counsel for the respondents could not point out any statutory Regulations or Rules, which provide for recovery of less gain in wheat stock from the employee, except the said instructions. After hearing learned counsel for the parties and going through the contents of the petition as well as the written statement and other documents available on the record, I am of the opinion that the impugned CWP No. 7284 of 2008 -6- order, passed by respondent No.2 holding the petitioner responsible for less gain of 282.13 quintals of wheat, amounting to Rs. 1,85,969/-, in view of the instructions dated 29.4.1999 and 14.3.2003 and adjusting the said amount against his retiral benefits is liable to be quashed. A perusal of the impugned order shows that the respondents have issued circular to the storekeepers requiring them to give the gain as per the norms fixed vide letter dated 29.4.1999, which were made applicable to all the procuring agencies. On the basis of the said letter, every procuring agency, including the respondents, issued instructions to all the District Managers of the Confed. Those instructions were challenged by the employees of the various procuring agencies in CWP No. 12950 of 1999 and the said petition was disposed of in view of the decision of this Court in CWP No. 3209 of 1993, decided on 20.6.1994, subject to the right of the respondents to take action in accordance with law, as and when regulations in this regard were framed. Concededly, till date, the respondent Federation has not framed any Regulations or Rules for effecting the recovery from its employees on the basis of less gain in the wheat stock. The impugned recovery has been made only on the basis of the circular issued by the Director, Food and Supplies, Haryana, vide letter dated 29.4.1999. In view of the aforesaid factual and legal position, the respondent Federation is not justified in withholding a sum of Rs. 1,85,969/- towards 70% less gain and adjusting the same against the retiral benefits of the petitioner. Consequently, the writ petition is allowed. The order dated CWP No. 7284 of 2008 -7- 7.2.2008 (Annexure P-10) is set aside and the respondent Federation is directed to release an amount of Rs. 1,85,969/- forthwith to the petitioner with interest at the rate of 8% per annum. April 16, 2009 ( SATISH KUMAR MITTAL ) ndj JUDGE