Punjab State Ware Housing Field Emp. Union v. Union of India and Ors.

Punjab & Haryana HC24 Aug 2012CWP/11967/2009

Case brief

AI extract

What is this about?

Petitioner challenged storage gain policies and charge-sheets alleging unscientific bases. Court noted difficulty in fixing uniform norms due to variable moisture conditions and held that issues must be resolved in meetings of senior officers across all agencies.

What the court decided

AI extract

Punjab State Ware Housing Field Emp. Union… — Service and Employment | Punjab & Haryana HC (2012)

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C.W.P. No. 11967 of 2009 [1]

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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Civil Writ Petition No. 11967 of 2009 (O&M) Date of decision : August 24, 2012

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Punjab State Ware Housing Field Employees Union .. Petitioner vs

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Union of India and others

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... Respondents

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CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL

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Present: Ms. Jagdeep Bains, Advocate for the petitioner. Mr. Karminder Singh, Advocate, for Union of India. Mr. K. K. Gupta, Advocate, for respondent No. 2. Mr. Satish Bhanot, Additional Advocate General, Punjab, for respondent Nos. 3 and 4.

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Mr. Gurminder Singh, Advocate, for respondent No. 5.

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Rajesh Bindal, J.

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The petitioner which is a Union of field employees working with the Punjab State Ware Housing Corporation (for short, 'the Corporation') has approached this court impugning the policy issued by the Government of India dated 7.7.2006 (Annexure P-23), inter-alia, providing for percentage of storage gain. In addition thereto, the order dated 19.7.2006 (Annexure P-24), passed by respondent No. 2, and minutes of the meeting of the Board of Directors of the Corporation dated 16.12.2008 adopting the guidelines issued by the Government of India have also been challenged. The petitioner has also challenged the charge-sheets issued to various employees ( Annexures P-27 to P-35).

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Briefly, the pleaded facts are that the petitioner is an association of field employees working in the respondent Corporation. The respondent Corporation is one of the five agencies working for procurement and storage of food grains in the State of Punjab for contribution to the control pool and for public distribution in the State. The other being Food

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C.W.P. No. 11967 of 2009 [2]

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and Supply Department, Punjab Civil Supplies Corporation Limited, Markfed and Punjab Agro Industries Corporation Limited.

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The issue under consideration is as to whether the policies / guidelines issued by the Government of India, as adopted by the respondent-corporation pertaining to the storage gain, call for interference by this court.

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Learned counsel for the petitioner submitted that it is not in dispute that the food grains like paddy and wheat are biological produce. It has tendency to gain moisture during the course of storage. However, it depends upon many factors. There can be a standardized formula to calculate the storage gain and for that there has to be a scientific study. The Government had been issuing policies from time to time for the purpose. As the policies/ guidelines already issued by the Government were not based on any scientific data, challenge was made to that by various employees' unions, who were being adversely affected on that account of storage of food grains. If calculated in terms of the storage gain policy on account of any shortage, the employees were being charge-sheeted or recoveries were being made from them. Civil Writ Petition No. 3230 of 1993 was filed by the Punjab State Ware Housing Field Employees' Union, challenging the recovery of the alleged less shortage gain from them. Learned Single Bench of this court allowed that writ petition on 20.7.1994 and set aside the recovery of less storage gain from the employees of the Corporation. The respondent-corporation filed appeal bearing Letters Patent Appeal No. 935 of 1994 before this court, which was disposed of on 12.2.2009, setting aside the judgment of the learned Single Judge and disposed of the writ petition as the original norms had been superseded by the instructions issued by the Government of India. The action contemplated against the employees and show cause notices for recovery, were set aside. However, liberty was given to the employees to seek appropriate redressal with regard to the validity of the new norms or the show cause notices that may be issued on the basis thereof.

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Learned counsel for the petitioner further submitted that even the employees of the Punjab Civil Supplies Corporation Limited had also

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challenged the earlier norms fixed. The writ petitions having been dismissed by this court, the matter was taken to Hon'ble the Supreme Court, where the same was also disposed of vide order dated 16.4.1999 observing that since the respondents had withdrawn the norms impugned before this court regarding the realization of excess on account of wheat stock stored in the godowns and new norms had been prescribed, the appeals had been rendered infructuous. However, the employees were given liberty to challenge the fresh norms/ instructions. It is in the light of the aforesaid liberty granted that the fresh norms which have been issued by the Government of India as adopted by the Corporation have been impugned in the present writ petition.

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Learned counsel for the petitioner referred to an affidavit filed by Joint Director, Food & Supplies Department, Punjab, before Hon'ble the Supreme Court dated 20.7.2006 wherein it had been admitted that data regarding increase/ decrease from storage had been prepared on unscientific basis. She further submitted that though the matter was referred to the Indian Grains Storage Management and Research Institute, Hapur (for short, 'IGMRI') for guidance and a report dated 3.3.2003 had been submitted by it to the Government of India but the recommendations were not considered. It had conducted some sample studies for godowns in Gaziabad. It has been specifically provided therein that the increase in weight during storage is a result of absorption of moisture contents from the atmosphere. Formula has also been provided for in the report. The moisture contents in the atmosphere has direct relation with the humidity and the quantity of rain. In case there is drought in a year, humidity will be quite low as a result thereof there may not be much gain during storage of wheat as against the period of rain, especially if these are excessive and spread over a longer period. In the study, gain in the weight on month to month basis has been provided but still while issuing the policy, the Government had provided that for storage in godowns, standard increase in weight @ 1% and for the wheat stored in open, 0.7% has been provided for.

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She further submitted that though a suggestion has been made in the report by IGMRI that the norms should be applicable provided the

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C.W.P. No. 11967 of 2009 [4]

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minimum storage period for wheat is at least four months but still these have been made applicable irrespective of the period of storage. Though the policy of the Government provided upto June in every crop year there would be no gain, however, subsequent thereto irrespective of the period of storage, gain has been provided @ 1% or 0.7% for storage in covered godowns or stored in open spaces, respectively, which has no rationale. She has further referred to the charge-sheets issued to various employees where for different periods of storage same kind of excess wheat is sought to be claimed and on the basis of shortage in terms thereof recovery is sought to be made.

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On the other hand, learned counsel for the respondentcorporation submitted that there is no dispute that because of humidity in the atmosphere, the wheat gains weight during storage. Gain is more in case it is in a covered place as compared to an open place. The reason is that in the open place the heat results in loss of more moisture in the food grains as compared to a covered place. He further submitted that earlier certain studies had been conducted to standardize as to what should be the ratio of weight gain during storage, however, those were with unscientific methods. After the Supreme Court order dated 16.4.1999, the job was given to IGMRI and a report dated 3.3.2003 was received therefrom which was made the basis for issuing the impugned guidelines/ instructions. It is a matter which is required to be considered by the experts on the subject. The Courts are not well equipped to opine on this matter. Once an expert opinion has come regarding the standard weight gain during storage in the areas of Punjab & Haryana, nothing lies in the mouth of the petitioner to challenge the same. However, in isolated cases wherever there are circumstances which could justify less weight gain during any period on account of various factors namely less period of storage or drought, etc. the matters can be considered independently. These are the kinds of exceptions and cannot be made a rule. The policy cannot be challenged by merely referring to the exceptions. 9. He further submitted that even before Hon'ble the Supreme Court in an affidavit filed by the Joint Director, Food & Supplies Department, Punjab, from a comparison in the study made on unscientific

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basis and a survey study made after a direction of Hon'ble the Supreme Court, it is evident that there was gain to the extent mentioned in the policy. In some cases it was even more than that.

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Learned counsel further submitted that there are five agencies in the State which procure food grains on their own account, some of which is for the central pool. The same is transferred to the Food Corporation of India. In fact, the respondent-corporation is bound to give the excess to the Food Corporation of India for the period the food grains remain in storage in the custody of the Corporation. In case of any shortage, in terms of the policy, the deduction is made from the bills of the corporation which results in undue loss to it. He further submitted that same policy is being adopted in the case of other procurement agencies in the States of Punjab and Haryana but none is raising any grouse.

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Learned counsel for Union of India submitted that norms have been fixed in terms of the report of the experts which cannot be interfered with.

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Learned counsel for the Food Corporation of India submitted that no relief as such has been claimed against the Food Corporation of India. It has been impleaded unnecessarily. In fact, the Food Corporation of India is also following the same norms while storing food grains in their depots.

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In response to the contention raised by learned counsels for the respondents, learned counsel for the petitioner submitted that in Punjab no action has been taken against any of the employees working in any of the procurement agency other than the Corporation. In Haryana, the Government had waived off recovery of crores of rupees on this account. It is only the employees of the Corporation, who are being discriminated.

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Heard learned counsel for the parties and perused the paperbook.

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In my opinion, the following issues are required to be considered by this court, namely, (i) as to whether the norms fixed for providing percentage of storage gain are reasonable; (ii) whether the chargesheets issued to the members of the petitioner-union for not providing

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storage gain to the extent it has been provided for in the instructions, can sustain judicial scrutiny.

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As far as issue No. 1 is concerned, this court does not have the expertise to opine on the issue as to whether percentage of storage gain provided for in the instructions issued by the government or the Corporation are reasonable or not. As is evident from the facts noticed above, the case is hanging fire since long. Earlier certain instructions were issued, which were challenged. The matter went upto Hon'ble the Supreme Court. Considering that revised instructions had already been issued, the matter was disposed of. During the pendency of the case before Hon'ble the Supreme Court, a study was got conducted through IGMRI, which suggested 1% gain for wheat stored in the godowns and 0.7% gain for storage in open w.e.f. 1.4.1999. It has even referred to certain formulas, which have bearing on the storage gain. The moisture in the wheat at the time of procurement and despatch of stock has, direct relation. Even humidity in the atmosphere is also relevant. It had made certain recommendations as well, which are extracted below:

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“1. MC ((Moisture content) must be taken at the time of receipt and issue by the calibrated – moisture meter in the presence of senior officers not below the rank of Asstt. Manager to ensure the correctness of the readings.

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Samples of 10% bags of the stock of the time of receipt/ dispatched should be taken as representative sample for measuring the moisture content of stock to be ensured by the senior officers.

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Weight Bridge must be calibrated before weighment of the stock to ensure the correctness of the weight.

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At the time of liquidation of the stock natural condition of the stock must be ensured without any disturbance manipulation except technical treatment required time to time.

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Strict vigilance should be maintained during transaction of stock from stack to weight bridge and vice versa

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during receipt and dispatch for taking the observation of weight of the commodity.

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Tare weight and loaded weight of the Trolley/ truck etc. must be taken after proper placement on the weight budge and checking of the container / vehicle with full satisfaction to avoid any manipulation in weight which is a general practice of transporters.

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The matter pertains to fixation of storage gain in wheat due to change in moisture during storage by the FCI. The matter has been examined and the comments of the S& R Division are as follows:

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The procurement of wheat in northern and central India takes place during summer season wherein excessive dry conditions prevails in the wheat producing States. Thus, the moisture content of wheat at the time of procurement is considerably low. This wheat when stored in CAP as well as in covered godowns absorbs moisture from the atmosphere during rainy season and gains weight.

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The percentage gain depends upon a number of variable factors such as initial and final moisture content of the grain, prevailing temperature and Relative Humidity (RH) conditions, storage conditions of food grains, etc. These conditions vary from year to year, region to region and State to Stage. IGMRI, Hapur and its field stations have carried out a number of scientific studies under field conditions in FCI/ CWC godowns to ascertain the percentage gain in wheat due to change in moisture. Since these conditions vary from year to year, region to region, no definite formula for fixing the gain in wheat could be worked out by the IGMRI. Although, some more studies are going on in IGMRI in this regard, it is not certain whether these would lead to some concrete conclusion about the exact quantum of gain in

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wheat due to increase in moisture content during storage.

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For the State Governments of Punjab and Haryana, Ministry has fixed 1% gain for wheat stored in godowns and 0.7% gain for wheat stored in open godowns/ CAP complexes w.e.f. 1.4.1999 i.e. for the commencement of RMS 1999-2000 (p.4/c). As per Ministry's instructions, this storage gain would be passed on to the FCI for the wheat handed over to FCI for Central Pool by the State Govts. of Punjab and Haryana.

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Therefore, it is proposed that the same norms for fixation of storage gain in wheat should be made applicable for the stocks procured, stored and issued by the FCI. However, there is one suggestion that these norms should be applicable provided the minimum storage period for wheat is at least 4 months.”

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Besides above, during the pendency of the matter before Hon'ble the Supreme Court in SLP (Civil) No. 6252 of 1994, in terms of the order dated 21.4.1995, test weighment of wheat lying in various godowns and other storage places was conducted. Providing that information, affidavit dated 20.7.1996 was filed before Hon'ble the Supreme Court by Joint Director, Food and Supplies Department, Punjab. It has been stated so in the aforesaid affidavit that despite requests, IGMRI did not send its experts for carrying out sample testing of wheat gain during storage. With great persuasion, they only agreed to train three of its Deputy Directors. The petitioner before Hon'ble the Supreme Court, namely, Inspectorate Staff Union, Food & Supplies Department, Punjab, even refused to co-operate in the process. Sample checking was done, result of which was placed before Hon'ble the Supreme Court. The relevant part of the affidavit is extracted below:

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“The final results show that out of 19 godowns, 10 have recorded increased in weightage. 8 Godowns have reported decrease in weightage. One Godown, have reported that the weight remains the same. Respondents submit that this

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C.W.P. No. 11967 of 2009

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compilation was done unscientifically on the basis of an unscientific basis and therefore does not depict the true picture. The information is tabulised below for ready reference:-

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Sr.	Centre		Godown Initial	Final	Increase/
No ----	. --------------	--	moisture ---------------------------------	moisture -------------	decrease as per quintal after 12 months of storage --------------------
1. ----	2. --------------	--	3. 4. ---------------------------------	5. -------------	6. --------------------
1.	Rayya		Open plinth 9.4.% Godown No. 31 9.4%	10.1% 10.4%	233 gm. increase 412 gm. increase
2.	Batala Bin No.	1	Open Chakka 9.70% 9.70%	11.20% 8.90%	394 gm. increase 234 gm. Increase
3.	Rayya		Open 8.2.% Compex No. 2	8.20%	035 gm. Increase
			Covered Shed 8.3% No. 1 Pb. Govt.	9.90%	047 gm. Increase
4.	Malerkot	la	Open E.E.I. 10.45% Bin No. 25 10.80%	11.08% 11.08%	050 gm. Increase -Nil-
			Covered Godown 9.96% No. 22.	11.28%	097 gm. Increase
5.	Khanna		SLR Open 9.30%	9.40%	763 gm. Increase
			SLK Covered - 4/11	10.2%	735 gm. Increase
6.	Mansa		Open 5-25 9.60%	9.80%	080 gm. Increase
7.	Malout		V.P.&Ob. 11.80%	9.80%	040 gm. Increase
8.	Rampura Phul		Bin Open --- Complex.	9.70%	026 gm. Increase
			Godown No. 2 --- covered	10.20	% 020 gm increase
9.	Ferozepur City	O L	pen M/s Rattan 10.03% al Kewal Krishan	9.90%	1kg.394 gm decrease
			Godown 9.53% No. 27 covered	10.00%	696 gm. decrease
10.	Abohar		Open Bin 9.90% Complex.	9.80%	712 gm. decrease
			Bin No. 14 10.1%	10.0% 1	kg 203 gm decrease

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C.W.P. No. 11967 of 2009 [10]

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That respondents have mentioned names of 19 Godown wherein test weighment was directed to have been carried out by this Hon'ble Court. There are several other reasons of the respondents. In these other godowns, increase in weight has been reported consistently during 1995-96, some of them are cited below:-

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PR-35	Centre	Godown	increase/ decrease
Reports		Number	per quintal
-------------- 1/30.10.95	-------------- Hoshiarpur	-------------- Godown No. 31 covering	---------------------------- 1 kg. 500 gms increase
2/96 dated Nil	Sirhind	Sudarshan Rice Mills open	1 kg. increase
3/96	-do-	Dashmesh Rice Mills open katcha	964 gms increase
4/96 dated	-do-	Joshi Rice Mills open	820 gms increase
1/96	-do-	Govt. open	740 gms increase
Nil dated 27.3.96	Kurali	Open	905 gms increase
D. R. No. 3/1 dated 10.10.95	Kahon	Open No. 1 Parmar	1 kg 270 gms increase
D. R. No. 3 Dt. 13.10.9	8 Phillaur 5	Open G. R.	M. 1 kg 565 gms increase
D. R. No. 1/4 dtd 2.4.96	Ludhiana	Open G.No.	1 1 kg 020 gms increase
D. R. No.	Ludhiana	P.S.W.C.	1 kg 003 gms
1/5 dtd 2.4.96		Unit-II Godown	increase

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C.W.P. No. 11967 of 2009 [11]

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That as the respondents are now aware of the scientific method of carrying out Test Weighment, respondents seek permission of this Hon'ble Court to start test weighment afresh from the crop year 1997-98 i.e. w.e.f. 1.5.1997.”

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A perusal of the aforesaid affidavit shows that there was lot of variation in storage gain in godowns and open storage places, which may be the result of many factors, which have even been highlighted by IGMRI. The important fact, which has been mentioned in the aforesaid affidavit, is that it was admitted by the State that it now knew scientific method of carrying out of test weighment to find out percentage of storage gain. Despite this, as to why that scientific method has not been applied for the year 1997-98 onwards is not known. Charge-sheets have been issued to the employees for the crop year 1999-2000. The matter is still lingering on.

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Nothing has been produced on record to show what was the policy being followed by all the procurement agencies for the period prior to the crop year 1999-2000, charge-sheets for which have been issued to the members of the petitioner-Union or even subsequent thereto. There is no dispute regarding the fact that storage gain is there. The moot point is the weight gained during storage. The policy once framed providing for storage gain cannot be static and applied for years together. As have been referred to in the reports of the experts, it has been opined that there are many factors which have bearing on the storage gain. Moisture content in the air has direct relation with the rains. Any policy framed for the purpose is required to be reviewed periodically. The exercise should be done by all the procurement agencies sitting together by taking advice from the experts. Opinion of the representatives of the employees can also be considered.

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As far as charge-sheets issued to the members of the petitionerUnion is concerned, the respondent-Corporation is not only one in the State, which was buying food grains at the time of procurement. Other agencies, like Food & Supplies Department, Markfed, Punsup and Ware Housing Corporation also buy food grains. Part of it is purchased for public distribution in the State, whereas part of it is for central pool, which is ultimately handed over to Food Corporation of India. Food Corporation of

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C.W.P. No. 11967 of 2009 [12]

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India independently also buys food grains. For the period, charge-sheets have been issued to the members of the petitioner-union, in my opinion, at this stage no scientific formula can be evolved for determining the storage wheat gain for the reason that stocks had already been despatched or damaged. As per certain recommendations of IGMRI, moisture at the time of storage and despatch has relation with storage gain. In my opinion, the issues for the period in question can be resolved with consideration of the matter in a meeting of the senior officers of all agencies, who had bought food grains during the period in question and the formula adopted by them for requiring its employees to give minimum storage gains. The employees of the petitioner-union should not be isolated. The treatment given to the employees of other agencies who had bought food grains during the period in question is also relevant.

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The writ petition is disposed of accordingly.

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( Rajesh Bindal ) Judge

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August 24, 2012 mk

Punjab State Ware Housing Field Emp. Union v. Union of India and Ors.

Case brief

What is this about?

What the court decided

Punjab State Ware Housing Field Emp. Union v. Union of India and Ors.

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