JUDGMENT S.C. Mathur, J. - The petitioner Sri M.N. Pandey has directed this writ petition against the order dated 30-1-1985, annexure 1, passed by the Managing Director of the Food Corporation of India, New Delhi, whereby the petitioner has been dismissed from service. At the time of passing the order of dismissal the petitioner was holding the post of Deputy General Manager in the Lucknow Regional Office of the Corporation. The order has been challenged on two main grounds:- 1. It has not been passed by the competent authority, and 2. It is not a speaking order and is violative of Regulation 59 (2) of the Food Corporation of India (Staff) Regulations, 1971, for short 'Staff Regulation', framed under section 45 of the Food Corporation Act, 1964 (37 of 1964). 2. On 10-4-1952 the petitioner joined service under the Government of India in the department of Food and Agriculture as Senior Godown Keeper. Later he was promoted as Godown Superintendent and thereafter as Assistant Director (General). With effect from 1-3-1969 the petitioner was posted in the Food Corporation of India as Senior Assistant Manager (General). On 15-1-1976 order was passed formally transferring the petitioner to the Corporation from Government of India. This transfer was made under Section 12-A of the Act. Before the petitioner was formally transferred to the Corporation he was promoted in the Corporation to the post of Deputy Manager (General) with effect from 21-5-1973. On 31-3-1982 charge-sheet was issued to the petitioner containing five articles of charges. The petitioner submitted his reply denying the charges. The enquiry into the charges was conducted by Sri A.A. Faridi who was appointed Enquiry Officer. Through his report, Annexure-2, he exonerated the petitioner of all the charges levelled against him. The Managing Director, however, did not agree with the finding of the Enquiry Officer and he passed order of dismissal which was communicated to the petitioner through memorandum dated 30-1-1984, Annexure-1, under the signature of Sri M.S. Yadav, Manager (Vigilance). This memorandum purports to have been issued under the orders of the Managing Director. It mentions that the Managing Director, after due consideration of the enquiry report, the relevant records and the evidence produced during enquiry has not agreed with the findings of the Enquiry Officer. This memorandum purports to have been issued under the orders of the Managing Director. It mentions that the Managing Director, after due consideration of the enquiry report, the relevant records and the evidence produced during enquiry has not agreed with the findings of the Enquiry Officer. Thereafter it proceeds to say -; " Shri M.N. Pandey while functioning as District Manager, Kanpur allowed the transportation work of Kanpur City on the basis of quotations on day-to-day basis which was a temporary measure but continued for over 2 years which was beyond his jurisdiction and powers. He, therefore, exceeded the powers delegated to him. The arrangements made by him in this regard were not covered by any contract either transport contract or HTC contract as laid down by the Corporation. The officer has caused loss in allowing a situation where bullock-carts have been paid at the rates of trucks without proper justification. The Managing Director, has, therefore, held that the charges to the extent stated above are fully established against Shri Pandey. He has, therefore, imposed the penalty of dismissal from service on the said Shri Pandey with immediate effect. 3. The petitioner filed the instant petition on 3-2-1984. As noticed hereinbefore, dismissal order was passed on 30-1-1984. The petitioner was due to retire on the very next day viz, 31-1-1984." 4. The petition has been contested on behalf of the opposite party. Sri S.T. Sriniwasan, Deputy Manager (Legal and Vigilance) in Food Corporation of India, New Delhi has filed counter-affidavit. In the counter-affidavit the factual averments mentioned hereinbefore have not been controverted. It has been asserted that in view of the amendment made in the Staff Regulations with effect from 6-2-1981 through notification dated 10-2-1981, the Managing Director was competent to pass the impugned order of dismissal from service. It has been denied that the impugned order is not a speaking order. It is stated that the Managing Director had held charge no. 1 to be proved and the reasons therefor are indicated in the impugned order. On this basis it is pleaded that the order is not violative of Regulation 59(2). It is also asserted in the counter-affidavit that the impugned order was appealable and in view of the availability of the alternative remedy the present petition is not maintainable. 5. The petitioner has filed a rejoinder-affidavit to controvert the stand taken in the counter-affidavit. 6. On this basis it is pleaded that the order is not violative of Regulation 59(2). It is also asserted in the counter-affidavit that the impugned order was appealable and in view of the availability of the alternative remedy the present petition is not maintainable. 5. The petitioner has filed a rejoinder-affidavit to controvert the stand taken in the counter-affidavit. 6. On the basis of the pleadings of the parties, the following points arise for determination :- 1. Whether the Managing Director was competent to pass the impugned order of dismissal from service ; 2. Whether the impugned order is violative of Regulation 59 (2), 3. Whether appeal was maintainable against the impugned order and whether on that account the writ petition is liable to be dismissed. 7. We shall take up the points in the serial in which they have been stated above. Competent Authority : The competent authority to pass the impugned order, according to the petitioner, is the Board of Directors of the Food Corporation of India. For making this submission reliance has been placed on Appendix 2 containing the heading "Discipline and Appeal Regulations", entry 4. It is not disputed between the parties that the petitioner was holding category 1 post. It is established from the Staff Regulations also. Classification of posts is contained in Regulation 3 Under this Regulation there are four categories of posts-Category I, Category II, Category III and Category IV. Posts under various Categories are mentioned in Appendix 1. The post of Deputy Manager is mentioned at serial no. 3 under Category I. The authorities competent to impose penalties are specified in Appendix I under the heading "Discipline And Appeal Regulations". In column no. 3 of this Appendix the appointing authority for officers other than Heads of Division is specified as the Executive Committee. In column nos. 5 and 6 the Managing Director is specified as the authority competent to impose penalties except the penalty of dismissal or removal from service for which competent authority prescribed is Board. This was the position obtaining at the time the petitioner was transferred to the Corporation by notification dated 10-2-1981, which came into effect from 6-2-1981. The Managing Director became competent to impose the penalties of dismissal and removal from service also. This was the position obtaining at the time the petitioner was transferred to the Corporation by notification dated 10-2-1981, which came into effect from 6-2-1981. The Managing Director became competent to impose the penalties of dismissal and removal from service also. About this factual position there is no dispute However, learned counsel for the petitioner submits that the amended provision will not be applicable in view of section 12-A (5) of the Act. According to the learned counsel the petitioner's conditions of service in respect of dismissal and removal from service will continue to be governed by the position obtaining at the time of petitioner's transfer from Government of India to the Corporation. 8. The learned counsel for the Corporation disputes the proposition and submits that the competence of the authority has to be determined with reference to the Rules obtaining at the time of passing the order of punishment. 9. In order to resolve the controversy, we may examine a few provisions of the Act. 10. Section 3 (1) of the Act authorises the Central Government to establish Food Corporation of India. The present Corporation has been established under this provision. The Corporation is, therefore, a statutory Corporation. Section 12 (1) provides for appointment of Secretary of the Corporation and sub-section (2) thereof deals with the appointment of other officers and employees of the Corporation. Section 12-A deals with transfer of Central Government employees to the Corporation, Sub section (1) of this section provides that where the Central Government has ceased or ceases to perform any functions which under section 13 are functions of the Corporation, it shall be lawful for the Central Government to transfer, by order and with effect from such date or dates (which may be either retrospective to any date not earlier than the 1st January, 1965, or prospective) as may be specified in the order, to the Corporation any of the officers or employees serving in the Department of the Central Government dealing with food or any of its subordinate or attached offices and engaged in the performance of those functions. It was was in exercise of the powers conferred by this provision that the petitioner, who was an employee of the Central Government, was transferred to the Corporation. It was was in exercise of the powers conferred by this provision that the petitioner, who was an employee of the Central Government, was transferred to the Corporation. Under sub section (3) an employee of the Central Government transferred to the Corporation ceases to be an employee of the Central Government on such transfer and becomes an employee of the Corporation with such designation as the Corporation may determine. Such transferred employee is governed by the Regulations made by the Corporation under the Act as respects remuneration and other conditions of service including pension, leave and provident fund. However, this provision is subject to the provisions of sub-sections (4), (4A), (4B), (4C), (5) and (6). In other words if the conditions of service prescribed by the Corporation in its Regulations are in conflict with the provision contained in these sub-sections, the provisions of the Regulation will not govern the condition of service of the transferred employee. Sub-section (5) which is referred to in sub-section (3) reads as follows:- "(5) No officer or other employee transferred by an order made under sub-section (1)- (a) shall be dismissed or removed by an authority subordinate to that competent to make a similar or equivalent appointment under the Corporation as may be specified in the Regulations made by the Corporation under this Act ; (b )..............; 11. Provided that this clause shall not apply : - (i)...............; (ii) ...........; or (iii) to an officer or employee who, after transfer to the Corporation, is appointed to a higher post under the Corporation, in response to an open advertisement and in competition with outsiders." 12. The heading of section 12-A is "Special provisions for transfer of Government employees to the Corporation in certain cases " From proviso (iii) reproduced above, it is apparent that benefit of section 12A is available to those officers and employees of the Corporation who were originally employees of Government of India and came to Corporation on transfer under section 12A (1) and whose status continues with the Corporation as transferred employees. The moment such an officer or employee is appointed to a post in the Corporation in response to an open advertisement and in competition with outsider, the protection is lost and all the provisions of Regulations become applicable to such an employee or officer. The moment such an officer or employee is appointed to a post in the Corporation in response to an open advertisement and in competition with outsider, the protection is lost and all the provisions of Regulations become applicable to such an employee or officer. There is no dispute between the parties that the petitioner was a transferred employee and his status did not change in the Corporation. Therefore, at the time of passing of the impugned order the petitioner remained a transferred employee and continued to enjoy the protection afforded to him under section 12A, including clause (a) of sub-section (5). 13. Under clause (a) of sub-section (5) the punishment of dismissal or removal from service cannot be awarded by an authority subordinate to that competent to make a similar or equivalent appointment under the Corporation as may be specified in the Regulations made by the Corporation. Another protection is afforded by clause (b). This contemplates an opportunity to show cause against the proposed punishment Clause (a) is equivalent to clause (1) of Article 311 of the Constitution and clause (b) is equivalent to clause (2) of the same Article as stood prior to the amendment by the 42nd Amendment of 1976. 14. When the petitioner was an employee of the Government of India, protection guaranteed under Article 311 was available to him. Protection afforded by Article 311 is available only to the members of Civil Service of the Union or the State. Service in a statutory Corporation is not service under the Union or the State. Therefore, on transfer to the Corporation the transferred employees would have lost the protection which was available to them under Article 311. The legislature thought that it would be unfair to deprive them of this protection ; therefore, the constitutional guarantees contained in Article 311 were incorporated in section 12-A (5). It is in this context that clause (5) of section 12A is to be interpreted. So interpreted, the said clause will have the same interpretation as Article 311 of the Constitution. It is settled law that under that Article the competence of the authority to impose punishment referred to therein is to be seen with reference to the date of original appointment. So interpreted, the said clause will have the same interpretation as Article 311 of the Constitution. It is settled law that under that Article the competence of the authority to impose punishment referred to therein is to be seen with reference to the date of original appointment. No authority subordinate to the authority which made the appointment can impose the said punishment even though by subsequent 'amendment a subordinate authority may have been prescribed as the appointing authority of that post. (See Krishna Kumar v. Divisional Assistant Electrical Engineer and another, 1979 (2) S.L.R. 291 In this view of the matter we have to determine the competence of the authority under sub section (5) with reference to the date on which the petitioner was transferred to the Corporation. Subsequent amendment of the Regulations will have no effect on that authority. Therefore, reliance placed by the learned counsel for the Corporation on the amendment of the Regulations by notification dated 10-2-1981 which came into effect on 6-2-1981, is misconceived. 15. In taking the above view we are supported by a decision of the Delhi High Court reported in S.C. Mehta v. Union of India and others, 1984 (1) All. I.S.L.J. 336. The petitioner in this case had joined the service of the Government of India, Ministry of Food, as an Assistant Analyser in 1952-After the establishment of the Food Corporation of India, he came to the Corporation on deputation in the year 1965 and continued to work there. In 1975 his services were transferred from the Central Government to the Corporation under section 12A of the Act. Although the formal order of transfer was passed in the year 1975, the transfer was made effective from 1-3-1969. Accordingly with effect from the said date the petitioner became a transferred employee in the Corporation. He was initially appointed as Senior Assistant Manager in the Corporation, a post to which the petitioner of the present petition was also initially appointed in the Corporation. Thereafter he was promoted as Deputy Manager. When he was holding the post of Deputy Manager, he was charge-sheeted and thereafter an order of his dismissal from service was passed by the Managing Director. On behalf of the Corporation the competence of the Managing Director was sought to be asserted on the basis of the amendment in the Regulations by notification dated 10-2-1981. When he was holding the post of Deputy Manager, he was charge-sheeted and thereafter an order of his dismissal from service was passed by the Managing Director. On behalf of the Corporation the competence of the Managing Director was sought to be asserted on the basis of the amendment in the Regulations by notification dated 10-2-1981. The plea was negatived and the order of dismissal from service was quashed. Comparing the provisions of sub-section (5) with Article 311 of the Constitution it was observed :- ".....When he is transferred to the Corporation he does not enjoy the constitutional protection because he ceases to be Government employee. But section 12A (5) gives a corresponding statutory protection to him. Otherwise he will be worse off when he joins the Corporation. So the legislature in its wisdom has converted the constitutional protection into statutory protection. What is of importance is that the Government employee when he joins the Corporation enjoys the same protection which he enjoyed as a Government employee under the Constitution. He continues to wear the same shining armour of protection which he wore under the Constitution as a Government employee. The only difference is that in the Government employment he was being protected by the Constitution. Now he is protected by the Act of 1964. This is why these provisions in sub-section (5) have been bodily lifted out of the Constitution and enacted as 'special provisions' in the Act. The Regulations, though they apply to transferred employees also, cannot whittle down the importance of these special statutory provisions." 16. We have now to consider whether the Managing Director who has passed the impugned order is subordinate to the authority competent to take action under sub-section (5). The sub-section does not clearly say whether the competent authority is to be determined with respect to the last post held under the Government of India or the first post held under the Corporation-But the use of the words "similar or equivalent appointment under the Corporation" makes it clear that the reference is to the post held under the Government of India at the time of transfer to the Corporation. There would be no occasion to use these words if the reference were to the first post held under the Corporation because there is no difficulty in identifying the appointing authority of such post. There would be no occasion to use these words if the reference were to the first post held under the Corporation because there is no difficulty in identifying the appointing authority of such post. When the post is available in the Corporation, the appointing authority of that post is bound to be available. The occasion to find out the authority competent to make similar or equivalent appointment would arise only when there are different departments and the post exists in one department but does not exist in the other. Accordingly we are of the opinion that only that authority of the Corporation will be competent to pass order of dismissal against the petitioner who is equivalent in rank to the authority which could have dismissed the petitioner from the post held by him under the Government at the time of transfer or an authority higher in rank to the said authority. It is not permissible for an authority lower in rank to that authority to pass the order of dismissal. In order, therefore, to determine whether the Managing Director was competent to pass the present order of dismissal from service, we will have to determine two things. First, the authority in the Government of India which was competent to take disciplinary action against the petitioner and second, whether that authority was equivalent in status to the Managing Director or lower to him. Neither the petitioner nor the opposite party has disclosed the designation of that authority. The petitioner has not stated that the said authority was higher in rank than the Managing Director of the Corporation. As already noticed, the last post held by the petitioner under the Government of India was as Assistant Director (General). The posts under the Corporation are mentioned in Appendix 1 to the Staff Regulations. This Appendix does not contain the post of Assistant Director (General). Accordingly the post last held by the petitioner under the Government of India is not available in the Corporation. It will, therefore, be necessary to determine the post in the Corporation equivalent or similar to the post of Assistant Director (General). This similarity or equivalence of post could be determined with reference to the pay scale. Unfortunately neither the petitioner nor the opposite party has disclosed the pay scale of the post of Assistant Director (General) under the Government of India. This similarity or equivalence of post could be determined with reference to the pay scale. Unfortunately neither the petitioner nor the opposite party has disclosed the pay scale of the post of Assistant Director (General) under the Government of India. Accordingly the material on record is insufficient to record a positive finding whether the petitioner has been dismissed from service by an authority which is lower in rank than the authority which could have dismissed him from the post of Assistant Director (General) under the Government of India, If the fate of the petition had rested on this ground alone, we would have dismissed the petition by observing that the petitioner has failed to prove that the Managing Director was not competent to take the impugned action against him. However, we refrain from recording a positive finding because the impugned order has to be quashed on the other ground urged on behalf of the petitioner. Violation of Regulation 59 (2) : Regulation 59 (2) reads as follows :- "(2) The disciplinary authority shall, if it discharges with the findings of the inquiring authority on any article of charge, record its reasons for such disagreement and record its own findings on such charge, if the evidence on record is sufficient for the purpose." 17. Under this provision, in the event of disagreement the disciplinary authority is required to do two things. In the first place it is required to record reasons for disagreement and the next it has to record its own findings. The impugned order as passed by the Managing Director on the record of the case has been reproduced Its contents as incorporated in the order dated 30-1-1984 of Sri M.S. Yadav, Manager (Vigilance) were communicated to the petitioner and this order of Sri Yadav has been filed as Annexure-1. It provides that the Managing Director as the disciplinary authority after due consideration of the enquiry report, the relevant record and the evidence produced during the enquiry has not agreed with the findings of the enquiry officer. The order further proceeds to record that Shri M.N. Pandey while functioning as District Manager, Kanpur allowed the transportation work of Kanpur city on the basis of the quotation of day-to-day basis which was temporary measure and this arrangement continued for over two and half years which was beyond his jurisdiction and powers. He, therefore, exceeded the powers delegated to him. He, therefore, exceeded the powers delegated to him. The arrangement made by him in this regard was not covered by any contract either transport contract or H.T.C. contract as laid down by the Corporation. The official has caused loss in allowing the situation where bullock-carts have been paid at the rate of trucks without proper justification. The impugned order then records that the Managing Director has, therefore, held that the charges to the extent stated above are fully established against Shri Pandey and has, therefore, imposed the penalty of dismissal from service of Shri Pandey with immediate effect. 18. Analysed thus, the Managing Director while passing the impugned order can at best be said to have recorded his reason and finding on one aspect underlying the charges framed against the petitioner, namely, that the petitioner (Shri M.N. Pandey) while functioning as District Manager, Kanpur, allowed the transportation work of Kanpur city on the basis of question of day-to-day basis and this arrangement continued for over two and half years which was beyond his jurisdiction and powers. According to the Managing Director Shri Pandey exceeded the powers delegated to him and this arrangement was not covered by any contract and resulted in loss to the Corporation. A perusal of the enquiry report would show that enquiry officer recorded his conclusion in the context of the evidence produced before him. He gave detailed reasons in recording his conclusion. The Managing Director while passing the impugned orders failed to discuss the evidence dealt with in the report of the enquiry officer. Regulation 59 (2) enjoins upon the disciplinary authority to record its reason for disagreement with the findings of the enquiry authority on any article of charge and record its own findings on such charge. This clearly implies that the disciplinary authority is required to consider the findings of the enquiry authority and record its categorical reasons for disagreement with the findings of the enquiry authority. For obvious reasons this cannot be done without considering and discussing the evidence on record and the reasoning adopted by the enquiry authority in the context and basis of such evidence. We have looked into the report of the enquiry authority and the contents of the impugned order and we are of the view that the impugned order has not been passed in conformity with the requirement of Regulation 59 (2). We have looked into the report of the enquiry authority and the contents of the impugned order and we are of the view that the impugned order has not been passed in conformity with the requirement of Regulation 59 (2). In view of our findings on this point, the writ petition will have to be allowed and the impugned order will have to be quashed. Alternative Remedy 19. Appendix 2, apart from specifying the authority competent to impose penalties, specifies also the appellate authority. Under this Appendix against the order of the Managing Director appeal lies to the Chairman of the Board. Against the order of the Board no appeal is provided for. Once it is held that the petitioner could be dismissed from service only by the Board, there would be no right of appeal available to him. We have not finally decided the question of competent authority as the material on record is insufficient. Be that as it may, availability of alternative remedy is not an absolute bar to the entertainment of petition under Article 226 of the Constitution. In the present case the petition was filed in the year 1984 and it is coming up for final hearing only in the year 1984. Further the impugned order of dismissal from service was passed one day prior to the date on which the petitioner attained the age of superannuation. On these facts we are not inclined to throw out the petition on the ground of availability of alternative remedy. 20. In view of the above the petition is allowed and the impugned order of dismissal from service dated 30-1-1984, Annexure-l passed by the Managing Director of the Food Corporation of India, opposite party, is hereby quashed. There shall be no order as to costs.