N.K. Sodhi, J. - (1.) This order will dispose of Letters Patent Appeal 736 of 1992 and also Civil Writ Petition 8612 of 1992 which was ordered to be heard along with it as common questions of law and fact arise in them. The appeal arises out of a writ petition filed by a Union of which the Assistant Food & Supplies Officers and Inspectors of the Food & Supplies Department, Punjab are members and they challenge in a representative capacity the instructions dated May 17, 1990 and May 29, 1991 issued by the State of Punjab laying down norms for realisation of excess of wheat stocks stored in godowns as well as under CAP/Bins/Khattis in regard to the crop years 1987 -88 and 1991 -92 respectively. The writ petition now before us has been filed by the Assistant Food & Supplies Officers' Union challenging the same instructions. Since the main arguments were addressed in the appeal, the facts are being taken from this case.
(2.) The State of Punjab through its Food & Supplies Department purchase wheat in large quantities from the market/village purchase centres at the time of harvest and stores it for subsequent supplies/delivery to the Food Corporation of India for the Central Pool. These wheat stocks are stored in covered godowns, in the open, covered by polythene and also in Bins/Khattis. The officials of the Department of the rank of Sub Inspector (PS), Inspectors (FS) and Assistant Food & Supplies Officers are deployed to look after stored wheat stocks. According to the respondent -State, grain being a hydrospheric commodity by nature, it takes and gives out moisture under conditions of atmospheric changes and during this process there may be loss or gain in weight though there is no food loss. The problem of loss/gain of weight due to atmospheric changes is often faced by large storing agencies like Ware Houses and Godowns but not the farmers who store it in small quantities. It is further submitted on behalf of the State that as per the research made by the experts, wheat in North India gains weight when stored because it is harvested at a very low moisture content and the grain absorbs moisture during the rainy season. Paddy, on the other hand, it is submitted is harvested at a very high moisture content and, therefore, loses moisture when stored resulting in loss in weight. In view of the scientific reports received as a result of the research conducted in this regard, the State of Punjab has been issuing instructions since the year 1972 requiring the staff on storage duty to account for the increase in weight of wheat due to absorption of moisture content according to the norms fixed for the respective corp years from time to time. The excess as per the norms is required to be accounted for at the time of handing over the stocks. The State of Punjab as per its letter dated July 14/15, 1987 fixed the norm of realising excess of stored wheat stocks as under: - (i) 1/2% in covered godowns, (ii) 1% for CAP storage and (iii) 1% for Bins/Khattis. It was further stipulated that recoveries would be made from those officials on storage duty who did not account for the excess as per the prescribed norms. In case the amount sought to be recovered from each individual was less than Rs. 1000/ - the same was to be recovered at the district level and where the value of the less excess of shortage was more than Rs. 1000/ -, such cases were to be referred to the Head Office. The instructions further provided that the recoveries shall be effected from the pay of the officials put on storage duty who were in the rank of Sub Inspectors (PS), Inspectors (FS) and Assistant Food & Supplies Officers in the ratio of 20% : 50% : 30% respectively. These instructions were challenged in this Court by the Inspectorate Staff Union. Food & Supplies Department (appellant herein) By filing Civil Writ Petition 8117 of 1989. The ground of challenge was that the State Government could not effect recoveries on the basis of a uniform norm as fixed by it and that it was incumbent upon it to proceed against each defaulting official individually after establishing in each case the extent of increase in weight, if any, of the wheat crop due to absorption of moisture which in the very nature of things would vary from case to case depending upon various factors like nature of storage, the season during which the stocks were stored as also the duration of storage etc. The Writ petition was admitted and when the stay matter came up for hearing before M.S. Liberhan, J. on August 28, 1987 the learned Judge stayed the operation of impugned instructions to the extent that the respondents therein were directed not to effect any recovery from the officials of the department though the department was at liberty to finalise the orders determining the amount to be recovered from each individual. Subsequently, the State Government withdrew the aforesaid instructions reserving its right to proceed against each defaulting official according to law under the Punjab Civil Services (Punishment and Appeal) Rules, 1970 (hereinafter called 'the Rules'). The writ petition then having become infructuous was dismissed as such and it was made clear that the State would be at liberty to proceed against each defaulting official under the Rules. After the dismissal of the writ petition, the department issued recovery notices which were based on the order passed by it after an enquiry conducted under the Rules. Some of these recovery notices have been attached as Annexures P11 to P18 with the writ petition. The State Government then issued fresh instructions on May 17, 1990 and May 29, 1991 for realising the excess of wheat stocks stored in godowns as well as under CAP/Bin/Khattis for the crop years 1987 -88 and 1991 -92 respectively. The relevant part of the instructions dated May 17, 1990 fixing the norm for the crop year 1987 -88 are reproduced hereunder for facility of reference: - "Reference Head office memo No. Excess -i -87/23072 dated 14/15.7.87 on the subject cited above. The instructions issued vide letter referred to above are hereby withdrawn, excepting that the norm of excess for the crop year 1987 -88 will remain as follows; - (i) Godown 1.5% (ii) Open 1% (iii) Bin/Khattis 0.5% Similar are the norms fixed by the instructions of May 29, 1991 for the crop year 1991 -92. Instructions for both these crop years were impugned in the writ petition before the learned Single Judge out of which the present appeal has arisen. The learned Single Judge held that the State Government had been able to prove with the help of scientific study conducted by various Institutes that there is a gain in weight in wheat during storage on account of absorption of moisture and that it was on the basis of such studies and practical experiments that the norms were fixed which were found reasonable. The writ petition was dismissed and hence the present appeal.
(3.) We have heard learned counsel for the parties at length. Mr. H.L. Sibal, Senior Advocate while challenging the impugned instructions contended that the earlier instructions issued on July 14/15,1987 fixing similar norms for realising excess of stored wheat had been challenged by the appellants in Civil Writ Petition 8117 of 1989 and when the operation of those instructions had been stayed by this Court, the State Government withdrew the same thereby making the writ petition infructuous. He goes on to contend that having withdrawn those instructions earlier the State was estopped from issuing fresh instructions fixing the same norms and effect recoveries from the inspectorate staff who are members of the appellants' Union. It was further contended that in view of the research conducted by experts in the field, wheat when stored, may lose weight or gain in weight depending upon various factors like the season in which it is stored, the duration of its storage and that so far it has not been scientifically proved that wheat always gains in weight during storage. It is, therefore, submitted that the State is not justified in recovering the excess in weight from the officials on storage duty on the basis of a uniform norm and that the norms fixed by the impugned instructions are unreasonable, without many basis, arbitrary and not warranted by any statutory provision. The argument is that if recovery is to be made from the concerned officials on account of excess in weight due to absorption of moisture, the department has to establish in an enquiry to be conducted in each case that there was excess in weight and the extent of increase has also to be proved.;