S. ABDUL JABBAR KHAN (CHAIRMAN).--Malik Muhammad Afzal, Retired Foodgrains Inspector, now care of Malik Akhtar Javaid, Assistant Director, Office of the Director of Industries, Punjab, Lahore, has filed this appeal a/s 4 of the Punjab Service Tribunals Act, 1974, in which he has impleaded the Deputy Director Food, Lahore Region, Lahore and Director Food, Punjab, Lahore as respondents.
2. By virtue of this appeal he has prayed that the impugned orders dated 24-6-1979, 10-10-1979 and 20-8-1985 may kindly be set aside and recovery of Rs.82, 200.20 imposed upon the appellant may be quashed.
3. Brief facts of the case are that while the appellant was posted as Foodgrains Inspector at P. R.
Centre, Chuharkana (Farooqabad) District Sheikhupura during Scheme Year 1976-77 he was served with Show-cause Notice dated 14-3-1978 alongwith other staff for causing shortage of 194.468.980 KG wheat valuing Rs.2,41,141. Appellant submitted his reply dated 1-1-1979 in which he explained that the shortage was normal as it was to the extent of 1.64%. He narrated the following reasons of the shortage:-
(i) At the time of purchase the rains started early and hence the stocks contained sufficient moisture.
(ii) The disposal of stocks was started late for want of allocation.
(i.e) All these unfumigated stocks (fumigants not provided in time) remained stored for nearly 2 years i.e. From 7-5-1976 to 24-3-1978.
(iv) Appellant alongwith other officials were bound to receive wet stocks even during rainfalls from Khangah Dogran upto 30-8-1976. Due to lack of storage accommodation (nearly 2,500 bags) they were placed at the Railway platform (mostly in open) and covered with Tarpaulins.
(v) During heavy rains private godowns, bins and house-type godown No.2 leaked badly, thus they got heated and damaged.
(vi) At least 1/12 out of 1225.145.000 KG wheat stored in house-type godown No.2 had become damaged and discoloured could not be separated (due to bulk storage) from the sound grain, hence the admixture of discoloured grains, created a bad effect (in weights) upon despatched stocks at the destinations. Last mound of 15.485 K.Gs was declared unfit for human as well as animals consumption by the Government Inspection Team and hence issued to the Agricultural Farms for use as manure.
(vii) The staff of the Flour Milling Corporation did not cooperate but instead remained hostile.
(viii) The above-noted facts had been brought to the notices of almost all the Inspecting Officers.
(ix) It has continuously been 'mentioned in S-I Forms that the stocks have and are being received heavy attack of infestation and their disposal was repeatedly requested for. Unfortunately the stocks in question were left in storage for about one year. It is also worth mentioning that the Asstt.
Food Controller remained on special duty as Addl. Manager, National Flour Mills, Sheikhupura under the management of Punjab Flour Milling Corporation from 17-7-1976 to 2-3-1977 because of which it was not possible for appellant to lookafter the stocks properly.
(x) As the circumstances were beyond the control of appellant he requested that the wheat got damaged resulting in the shortage not due to the default and negligence of the appellant.
(xi) The year 1976-77 was the year of abnormal rains. Due to lack of adequate storage facilities with the Food Department stocks of food all over the Punjab were seriously affected. This also attracted the attention of Martial Law authorities who also issued general instructions to the Food Department and the latter also gave instructions to the lower authorities. According to these instructions where loss/damage was upto 5% a censure was to be given but where loss/damage was upto 10% increment was to be stopped.
Appellant's explanation was not accepted and Deputy Director Food, Lahore Region, Lahore issued Order dated 24-6-1979 wherein a nominal quantity was written of and recovery of Rs.1,71,418.98 was imposed upon the Asstt. Food Controller, Foodgrains Inspector (Appellant) and Foodgrains Supervisor in the ratio of 40 : 40 : 20 respectively. According to this ratio appellant had to deposit Rs.68,567.40. Later on Deputy Director Food, Lahore Region, Lahore reviewed his own earlier order and passed revised Order dated 10-10-1979. By this Order the Deputy Director Food remitted the recovery of Foodgrains Supervisor and the same was imposed upon the appellant thus increasing the appellant's share of recovery from Rs.68,567.40 to Rs.82,200.20. Appellant filed Departmental appeal dated 27-8-1984 which was rejected by the Director Food, Punjab, Lahore vide Order dated 29-6-1985. The said order of rejection has been conveyed to the appellant with order dated 20-8- 1985. The appeal was rejected both on merit as well as on the ground of limitation. The Tehsildar (Recovery) and the D.F.C. Jhang directed the appellant to refund the amount of Rs.82,200.20. In the meanwhile Appellant retired from service w.e.f. 3-1-1982.
4. We have heard the parties and have also perused the record pertaining to this case. The learned Counsel for the appellant has assailed the impugned orders both on legal grounds as well as on merits. On legal ground he has submitted that according to the Food Department Delegation of Powers Rules, Deputy Director Food is Authority in the case of Foodgrains Inspector whereas District Food Controller of the District is the Authorised Officer. Under the E & D Rules, 1975 Deputy Director Food as Authority could pass an order of initiation of proceedings under rule 5 and thereafter the proceedings had to be taken by the District Food Controller as Authorised Officer, It was for the Authorised Officer to decide whether in the light of the facts of the case an enquiry had to be held or not. After the receipt of Appellant's explanation the Authorised Officer had to determine whether a minor or major penalty had to be imposed and in case the Authorised Officer was of the view that only a minor penalty was sufficient in that case he would dispose of the case at his own level otherwise the case had to be submitted to the Authority for final decision. The learned Counsel has pointed out that in this case Deputy Director Food, Lahore Region, Lahore has conducted the entire proceedings which had to be conducted by the Authorised Officer thus usurping the powers of Authorised Officer and committed the violation of E & D Rules, 1975. He has in this connection relied upon 1977 PLC (C. S.)
81. Similarly he has attacked the revised Order dated 10-10-1979 of the Deputy Director Food on the ground that under E & D Rules Authority was not competent to revise its own orders because this power vested in Government alone under Rule 18 of E & D Rules, 1975. As regards merits, it has been explained by the learned Counsel for the appellant that the shortage of 1.64% during the period of two years i.e. From 7-3-1976 to 24-3-1976 is quite natural and the Food Department has also been writing of shortage of 1% per year in all the cases. He has vehemently stressed on the 11 points mentioned in para 3 above. It has further been pointed out that according to the impugned order the recovery had to be effected from the pay of the appellant.
Consequently with Appellant's retirement the order stood abated as after his retirement appellant was no more in receipt of any pay. He has further submitted that the E & D Rules did not provide for recovery from a source other than the pay. He has therefore pointed out that there was no negligence whatsoever on the part of the appellant, he had been performing his duties as such quite diligently and vigilently and the loss was only due to natural causes which were beyond the control of Appellant. Lastly the Appellant's counsel forcefully argued that serious discrimination has been observed while imposing the penalty in this case, because in the cases of adjoining Centres at Sharqpur and Faizabad the same Authority had written of shortage to the extent of 7.81%, 10%, 11.76% and so on; whereas in his case the shortage was only 4%.
5. The learned District Attorney has resisted the arguments of the appellant's counsel and has argued that the entire loss was caused due to the negligence of the appellant and other officials otherwise Government would have been saved from such a colossal loss. He has also pointed out that the appeal is badly barred by time because' appellant had filed departmental appeal on 27- 8-1984 although the original order was passed against him on 21-6-1979. He has also relied upon parawise comments in extenso and has prayed that the appeal be dismissed on merits as well as on ground of limitation.
6. We have given our anxious thought to the arguments and the points raised by both the parties.
First of all we dispose of the objection as to the legality of the proceedings against the appellant. It is settled that according to the scheme of E & D Rules, 1975 Authority and Authorised Officer are two independent functionaries --Authority has not been authorised to perform the functions of Authorised officer and whenever Authority usurped the powers of Authorised officer we struck down such powers. This point has been settled in 1977 PLC (C.S.) 81 and 1980 PLC (C.S.) 524 in the cases of civil servants of various Departments. This point has specifically been settled in the case of civil servants of Food Department in cases Nos.854/1252 of 1984, 855/1251 & 856/1253 of 1984 decided on 1-10-1985. The relevant portion is quoted below:- "I have carefully considered the points so raised by the learned counsel for the appellants as well as the learned D.D.A. For the respondents assisted by the Litigation Officer of the Food Department. I have also perused the relevant record including the departmental comments. I am of the considered opinion that indeed the perusal of Delegation of Powers Rules of the Food Department, copy of which is on the record of this file, the Authorised Officer in case of the appellants was the D.F.C. And not the Deputy Director Food. Since instead of D.F.C. The Deputy Director Food acted as Authorised Officer, this would knock out the very bottom of the case i. e. The impugned orders. This objection is fully supported by the authorities relied upon by the learned counsel for the appellants cited above ...."
Similarly the other legal point has also good deal of force because under E & D Rules, 1975 Authority has no power to review the orders passed by it. After an Authority has passed order in a particular case it is rendered functus officio and if at all some revision of such order is necessary and the same has to be undertaken by the Government under rule 18. Therefore the orders dated 10-10- 1979 passed by the Deputy Director Food, Lahore Region, Lahore were) beyond jurisdiction and void ab initio.
7. On merits also the appellant has a good case. Appellant has explained the actual reasons of the shortage in pars. 1 of the appeal which has not been controverted by the Department. Therefore, in view of the admitted facts that at the time of purchase the stocks were already wet and contained sufficient moisture, no fumigants were provided in time, the period of storage was prolonged and heavy rains adversely affected the conditions of stocks. The appellant is not responsible for the alleged shortage. The conditions of wheat were consistently brought to the notice of higher authorities by the appellant but no timely orders for despatch were passed. In the circumstances we cannot hold the appellant guilty of any negligence in the performance of his duties. Therefore the only conclusion is that the shortage in question was beyond the control of the appellant: It has also not been denied that the year 1976-77 was the year of abnormal rains and Martial Law Authorities issued instructions that in cases where there was loss/damage upto 5% only penalty of censure was to be awarded to the officials of Food Department.
8. We have also taken notice of the fact that in the case of PR Centre Sharqpur Kalan of the same District and in the same scheme year the shortages to the following extent were written of by the Deputy Director Food, Lahore Region, Lahore vide his order/ endorsement No.LRS-Is (29-SKP) 82/96 dated 14-1-1982:- Similarly, in the case of PR Centre, Faizabad of the same District of the same scheme year the same Authority written of the following shortage vide his order/ endorsement No.LRS-Is-(31-QSP)-81/58 dated 13-1-1982:- I-PR Centre Sharqpur: Period of StorageShortage % age.
YearMonthsDays 01177.81% in private godowns.
0- 11- 1710%-do- Appellant had brought the above-noted facts on record through his Application dated 28-5-1986 and notice of which was given to the Respondents vide our short order dated 29-5-1986 with a direction to produce the record on the next date of hearing. Neither any reply to the said application was filed nor the record was produced on subsequent dates of hearing. Accordingly legal presumption is that Government had intentionally not produced the record because if the same had been produced it would have gone against the Government and in favour of the appellant. We are therefore of the considered view that Respondents observed serious discrimination in the matter while deciding appellant's case. If shortages to the extent of 10% to 11% were written of in the case of adjoining PR Centres in the same circumstances then there was no justification on the part of the Department not to write of shortage to the extent of 1.64% in the case of the stocks of PR Centre Chuharkana (Farooqabad).
9. Keeping in view the merits of the case as well as the legal position that the impugned order dated 24-6-1979, 10-10-1979 were void ab initio we condone the delay in the filing of the present appeal.
10. We, therefore, proceed to accept the appeal, set aside the impugned orders dated 24-6-1979, 10-10-1979 and 20-8-1985 as well as the recoveries imposed upon the appellant in these orders.
There will be no orders as to costs.
A.E./67/Sr.S II - PR Centre Faizabad: Period of Storage.Shortage % age.
Year Months Days 11016.23 % 111124.00 % 111105.57 % 1 1055.67 %