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Jagdish Chandra Awasthi v. State Of U.P. And Others - WRIT - A No. 69483 of 2005 [2006] RD-AH 7313 (5 April 2006)


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                                                                                                Court No. 52

Civil Misc. Writ Petition No.69483 of 2005

Jagdish Chandra Awasthi


State of U.P. and others.

Hon'ble V.K. Shukla,J.

Show cause notice was issued to the petitioner by the Managing Director of U.P. Cooperative Federation  Limited mentioning therein that in the year 2000-01, 27300 M.T. custom milled rice and in the year 2001-02, 23,700 M.T. custom milled rice was not delivered by the petitioner to the Food Corporation of India, and on account of this a loss of Rs.4,85,449.82 had been caused, as such petitioner was held guilty of such loss being caused and notice was issued as to why the said amount be not recovered from the petitioner. Detailed reply was submitted by the petitioner  on 20.06.2005. Thereafter order has been passed, which is subject matter of challenge in present writ petition. On presentation of writ petition following interim order has been passed:

"Heard learned counsel for the parties and perused the record.

The case of the petitioner is that he was appointed on the post of Godown Assistant in U.P. Cooperative Federation Limited. He was promoted from time to time and is presently working as Assistant  Superintendent in the Regional Office of the  U.P. Cooperative Federation at Gorakhpur. The petitioner was issued show cause notice dated 2.6.2005 by the  Managing Director of U.P. Cooperative Federation  Limited alleging that some irregularities have been committed by him due to which the Federation has suffered loss and he was required to show cause as to why the recovery may not be made from him for the loss caused to the Federation. The petitioner has submitted his explanation to the show cause notice dated 2.6.2005 inter alia, that the loss has not been caused due to his any mistake or any irregularity on his part, as such the impugned show cause notice is liable to be quashed.

The petitioner is aggrieved by the impugned order dated 27.7.2005 passed by respondent no. 3 by which recovery for the alleged loss is sought from his retiral dues.

The contention of the learned counsel for the petitioner is that the explanation of the petitioner has not at all been considered by the authority and the impugned order is  arbitrary and illegal. Let counter affidavit be filed.

The standing counsel has accepted notice on behalf of respondent no. 1. He prays for and is granted two months and  no more time to file counter affidavit.

Issue notice to respondent Nos. 2, 3 and 4 returnable at an early date.

The aforesaid respondent Nos. 2, 3 and 4 may also file counter affidavit within the aforesaid period.

Rejoinder affidavit, if any, may be filed within one month thereafter.

List immediately thereafter.

Till further orders, no recovery shall be made from the petitioner in pursuance of order dated 27.7.2005 unless this order is vacated or modified."

Notices have been issued to respondent Nos. 2, 3 and 4by R.P.A.D. fixing 15.02.2006. This court on 15..12.2005 asked for the office report regarding service of notices on these respondents. On 14.02.2006 office submitted its report that neither acknowledgment due nor undelivered notice has been received back. In view of the office report service on these respondents is presumed sufficient in terms of Chapter VIII Rule 12 of the Rules of court. On 15.02.2006as  last opportunity one month and no more time was allowed for filing counter affidavit, but no counter affidavit has come forward.

The matter has been taken in the revised list and no one has entered appearance on behalf of respondent Nos. 2, 3 and 4. Learned counsel for the petitioner and learned Standing Counsel have been heard and the matter is decided finally.

Learned counsel for the petitioner, contended with vehemence that in the present case order dated 27.07.2005 is clearly vitiated in the eyes of law, inasmuch as reply submitted by the petitioner at no point of time was adverted to and no reason has been assigned as to why the reply submitted was unsustainable and as the reply has been ignored as such the decision making process is faulty. Apart from this authority of the Managing Director has been questioned, and for the said proposition reliance has also been placed on the judgment in case of Ram Pal Singh Tyagi vs. U.P. Cooperative Federation  Limited  and another, 1998 (3) ESC 2355 (All).

Learned Standing Counsel, on the other hand, contended that valid action has been taken and no interference be made.

After respective arguments have been advanced, undisputed position is that detailed reply to show cause notice submitted by the petitioner at no point of time was adverted to. Consequently, the decision making process is faulty on the face of it, inasmuch issuance of show cause notice has a purpose so that the other side, in case he has some statable defence, may put it and the same may also be adverted to. Here, in the present case once reply submitted was not adverted to, then the very purpose of issuing notice is a redundant exercise on the part of the authority. Consequently, the order impugned is vitiated in the eyes of law for non consideration of reply submitted by the petitioner. The issue of jurisdiction raised before this Court does  not find mention in the reply submitted by the petitioner on 28.06.2005. However, as  issue of jurisdiction has also been raised before this Court and since reliance is being placed on Division Bench decision of this Court, the plea of jurisdiction can also be raised before the Managing Director, who shall deal with this question as well.

Consequently, writ petition succeeds and is allowed. The impugned order dated 27.07.2005 is hereby quashed. The matter is remitted back to the Managing Director for passing fresh order after taking into consideration the reply to show cause notice submitted by the petitioner, as well as question of his competence to take action.

No order as to costs.




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