Chamy v. Senior Regional Manager — 1997 DIGILAW 365 (KER)

JUDGMENT 1. In this writ petition, a retired Assistant Depot Manager of the Food Corporation of India (hereinafter used acronym 'F.C.I.') questions the infliction of penalty of debarring his two increments with cumulative effect in the disciplinary trial stemming from Ext. P1 and ending with Ext. P10. Accusing misconduct against him the first respondent proposed to hold an enquiry under S.5 of the Regulation.58 of the Staff Regulations. 2. The charges displayed from Ext. P1 are that the petitioner failed to maintain devotion to duty and promote the interests of the Corporation and also acted in a manner most unbecoming of a responsible officer. Readily controverting those charges he submitted Ext. P2 statement and pleaded not guilty. By order dated 28th October 1.987 Sri Richard D'Souza, Joint Manager (Inquiry) had been appointed as the Inquiry Officer displacing the Officer earlier nominated. Ext. P3 report submitted by the Inquiry Officer after conducting the inquiry unearthed that the articles of charges framed against the petitioner had not been conclusively proved. In contrary to the expectation he had received Ext. P4 order dated 27th September 1989 from the second respondent disciplinary authority imposing upon him penalty of withholding two increments due for 1990 and 1991 with cumulative effect, along with the copy of the enquiry report. As against this order, Ext. P5 (a) appeal had been filed before the third respondent Managing Director of F.C.I, through proper channel as allowed under Regulation.70 of the Food Corporation of India Staff Regulation, 1971. Though Ext. P5 (a) had been presented on 29th November 1989 no tangible step was taken to deal with the appeal immediately. Therefore he submitted Ext. P7 representation on 5th December 1992 to the third respondent requesting to dispose of Ext. P5 (a) appeal expeditiously. In the meanwhile the petitioner retired from service on 31st May 1993. Again he submitted Ext. P9 representation dated 25th August 1995 soliciting the third respondent for immediate action. 3. Being aggrieved by the apparent abdication of duty by the third respondent the petitioner filed the present writ petition praying to quash Ext. P4 order dated 27th September 1,989 and also for a command to third respondent to consider and dispose of Ext, P5 (a) appeal along with Ext. P6 (a), P7 (a), etc., within a specified period. 3. Being aggrieved by the apparent abdication of duty by the third respondent the petitioner filed the present writ petition praying to quash Ext. P4 order dated 27th September 1,989 and also for a command to third respondent to consider and dispose of Ext, P5 (a) appeal along with Ext. P6 (a), P7 (a), etc., within a specified period. After entertaining this writ petition, this court seeing the inexorability of the third respondent issued an interim direction on 27th November 1995 in C. M. P. No. 33506 of 1.995 commanding him to consider and dispose of Ext. P5 (a) appeal within a period of two months. In pursuance of the said order third respondent rejected the appeal on 11th January 1996. Necessarily the said order will have to be produced for effective disposal of this writ petition. The writ petition was consequently amended incorporating the said order passed by the third respondent as Ext. P10. It was an order rejecting the appeal under Regulation.14 of the Regulations, 1971. Ext. P10 order is also sought to be invalidated in this proceeding. 4. From Ext. P1 charge memo it is axiomatic that the main allegation centres round the alleged dereliction attributed to the petitioner in overseeing the performance of his subordinate staff. The case of the Corporation is that his subordinate staff had falsified the depot records leading to accumulation of large quantities of foodgrains unauthorisedly and the petitioner failed to control them. However, the counsel for the petitioner in this context submits, this cannot be treated to be a misconduct in view of the decision of the Supreme Court in Union of India v. J. Ahmed AIR 1979 S. C. 1022. The apex court in the above case was considering R.16 (2) of the All India Services (Death cum Retirement Benefits) Rules and the question arose was whether lack of efficiency and failure to attain highest standard of administrative ability constitute misconduct. In that context the Supreme Court observed: "Allegations in the various charges do not specify any act or omission in derogation of or contrary to conduct Rules save the general R.3 prescribing devotion to duty. It is, however, difficult to believe that lack of efficiency, failure to attain the highest standard of administrative ability while holding a high post would themselves constitute misconduct. If it is so, every officer rated average would be guilty of misconduct. It is, however, difficult to believe that lack of efficiency, failure to attain the highest standard of administrative ability while holding a high post would themselves constitute misconduct. If it is so, every officer rated average would be guilty of misconduct. Charges in this case as stated earlier clearly indicate lack of efficiency, lack of foresight and indecisiveaess as serious lapses on the part of the respondent. These deficiencies in personal character or psrwnal ability would not constitute misconduct for the purpose of disciplinary proceedings," (emphasis Supplied) The above decision has been followed by a Single Judge of this court in Kannan v. Secretary, Board of Revenue 1994 (1) KLT 271 , Applying the law laid down by the Supreme Court in J. Ahmed's case AIR 1979 SC 1022 the learned Judge set aside the disciplinary proceedings on the ground that lack of efficiency and failure to attain highest standards of administrative ability while holding the post would not themselves constitute misconduct for the purpose of disciplinary proceedings. 5. Secondly it was argued that the petitioner did not get adequate opportunity to dissuade the disciplinary authority not to come to a different conclusion from that of Inquiry Officer. The inquiry report is the primordial source for the disciplinary authority to evaluate the alleged misconduct of the delinquent. It would then be appropriate to know what the Inquiry Officer said about him in Ext. P3 report. The following passage is relevant. ''From the deposition of prosecution/defence witnesses, it is observed that the GO was posted as Supervising Officer for 3 different units i.e., Sub Depot 1, 2 and Trichur goods shed situated in a radius of 3 km. distance. It would not be physically possible for any person to supervise cent per cent of the operations in all these three units. For Sub Depot 1 and 2 regular A.G.I(D)s. have been posted as stock holders. Only at goods shed one A.G. III D was posted. On perusal of Ext. P89 stock card register, it was observed that in certain cases the depot staff has correctly recorded the excess/shortages received. In view of the above, the articles of charge against Sri K. Chamy, Asst. Manager (Depot) Charged Officer is not conclusively proved'." In view of this definite conclusion of the Inquiry Officer the disciplinary authority ought to have agreed with him and absolved the petitioner of all charges. In view of the above, the articles of charge against Sri K. Chamy, Asst. Manager (Depot) Charged Officer is not conclusively proved'." In view of this definite conclusion of the Inquiry Officer the disciplinary authority ought to have agreed with him and absolved the petitioner of all charges. However, without taking the petitioner into confidence the disciplinary authority disagreed with the conclusion of the Inquiry Officer. It is apodictic that disciplinary authority has furnished the inquiry report to the petitioner only along with Ext. P4 order containing the final verdict. Thus it is crystalline that the petitioner did not get an opportunity to make representation to dissuade the disciplinary authority from disagreeing with of inquiry report. When the disciplinary authority feels that he could not agree with the conclusion of the Inquiry Officer and proceeds to amerce the delinquent, principles of natural justice demand he should be given an opportunity of being heard before the final verdict is given. It is a settled position that when the disciplinary authority disagrees with the conclusion of the Inquiry Officer and proposes to impose penalty irrespective of the conclusion of the Inquiry Officer principles of 'audi altrem partem' demand issue of a pre-decisional notice to the delinquent. In Managing Director v. B. Karunakar AIR 1994 SC 1074 the Supreme Court has laid down that wherever service rules contemplate an inquiry before a punishment is awarded and when the Inquiry Officer is not the disciplinary authority, the delinquent employee will have the right to receive the inquiry report notwithstanding the nature of punishment. This is an indispensable right available to the delinquent in a disciplinary proceeding. 6. In Thobias v. State of Kerala 1987 (1) KLT 501 this court said that the requirements of natural justice in a given case must depend to a great extent on the facts and circumstances of each case. The extent and application of the principles of natural justice cannot be limited to any rigid formula. It further observed: "It is true that there is no such specific provision for giving an opportunity to explain after the conclusion of the enquiry proceedings, in cases where the proposal is to impose a penalty like the one imposed in this case. Absence of such a specific rule does not provide a carte blanche for dispensing with the rule of natural justice. Absence of such a specific rule does not provide a carte blanche for dispensing with the rule of natural justice. The position may, perhaps be different when the statute disallows such opportunity. But mere absence of any provision in the Rules for providing such an opportunity is different from a positive statutory direction to proceed in a different way. Had the findings of the enquiry officer been adverse to the delinquent officer, perhaps the disciplinary authority could have imposed such penalty without giving a further opportunity to the affected person. But when the enquiry officer's findings are favourable to the petitioner, a dissent from such findings should have been made only after giving the affected person an opportunity. Principles of natural justice cannot be given a go bye even for making administrative orders." In this context the following observation of Tucker, L. J. in Russel v. Duke of Norfolk (1949) 1 All E. R.109 is apt to be ectyped. "There are, in my view, no words which are of universal application to every kind of inquiry and every kind of domestic tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth. Accordingly I do not derive much assistance from the definitions of natural justice which have been from time to time used, but, whatever standard is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case." The Supreme court in Chandra Bhavan Boarding and Lodging, Bangalore v. State of Mysore and another AIR 1970 SC 2042 observed thus: "What particular rule of natural justice, if any, should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the inquiry is held and the constitution of the tribunal or body of persons appointed for the purpose." 7. While considering this question it is necessary to recall the amendment introduced in clause (2) of Art.311 by virtue of the Constitution (Forty-second Amendment) Act, 1976 whereby the requirement of providing opportunity to the delinquent to make representation on the penalty proposed has been expressly taken away. While considering this question it is necessary to recall the amendment introduced in clause (2) of Art.311 by virtue of the Constitution (Forty-second Amendment) Act, 1976 whereby the requirement of providing opportunity to the delinquent to make representation on the penalty proposed has been expressly taken away. In this context, the following observation of the Supreme Court in Union of India and others v. Mohammed Ramzan Khan AIR 1991 SC 471 is apposite. "Deletion of the second opportunity from the scheme of Art.311 (2) of the Constitution has nothing to do with providing of a copy of the report to the delinquent in the matter of making his representation. Even though the second stage of the inquiry in Art.311 (2) has been abolished by amendment, the delinquent is still entitled to represent against the conclusion of the Inquiry Officer holding that the charges or some of the charges are established and holding the delinquent guilty of such charges. Fordoing away with the effect of the inquiry report or to meet the recommendations of the Inquiry Officer in the matter of imposition of punishment, furnishing a copy of the report becomes necessary and to have the proceeding completed by using some material behind the back of the delinquent is a position not countenanced by fair procedure. While by law application of natural justice could be totally ruled out or truncated, nothing has been done here which could be taken as keeping natural justice out of the proceedings and the series of pronouncements of this court making rules of natural justice applicable to such an inquiry are not affected by the Forty-second Amendment. We therefore come to the conclusion that supply of a copy of the inquiry report along with recommendation, if any, in the matter of proposed punishment to be inflicted would be within the rules of natural justice and the delinquent would, therefore, be entitled to the supply of a copy thereof. The forty-second amendment has not brought about any change in this position" (emphasis supplied) The reason is obvious. The principles of natural justice is the product of environment and dependent on facts of realities which varies from case to case. Such sacrosanct principles cannot be obliterated by the intervention of the statute. "The so called rules of natural justice are not engraved on tablets of stone", so said Lord Bridge in Lloyd v. Mc Mohan 1987 A.C. 625. The principles of natural justice is the product of environment and dependent on facts of realities which varies from case to case. Such sacrosanct principles cannot be obliterated by the intervention of the statute. "The so called rules of natural justice are not engraved on tablets of stone", so said Lord Bridge in Lloyd v. Mc Mohan 1987 A.C. 625. 8. The decision in Mohammed Ramzan Khan's case AIR 1991 SC 471 came up for consideration before the Constitution Bench of the Supreme Court in Managing Director, E.C.I.L. v. B. Karunakar AIR 1994 SC 1074 wherein it has been laid down thus: "In the view that we have taken viz., that the right to make representation to the disciplinary authority against the findings recorded in the enquiry report is an integral part of the opportunity of defence against the charges and is a breach of principles of natural justice to deny the said right, it is only appropriate that the law laid down in Mohammed Ramzan case should apply to employees in all establishments whether Government or non-Government, public or private. This will be the case whether there are rules governing the disciplinary proceedings or not and whether they expressly prohibit the furnishing of the copy of the report or are silent on the subject." (emphasis supplied) When the Supreme Court has time and again laid down that the right to make representation to the disciplinary authority against the findings recorded in the inquiry report is an integral part of the inquiry, denial of such opportunity is indubitably breach of the principles of natural justice. The supply of the copy of the inquiry report along with the order of punishment is quite a typical and improper forcibly militate against the principles laid down by courts. The distinction between the opportunity to make representation on the penalty proposed and opportunity to make representation on the report of the enquiry officer are clearly to be delineated. The purpose of supplying the copy of the enquiry report to the delinquent is sacrosanct in that he gets an opportunity to know about the findings thereon to dispel the imbroglio as to the nature of domestic inquiry conducted against him, The verdict in the inquiry report may either be detrimental to his cause or advantageous to his benefit. The purpose of supplying the copy of the enquiry report to the delinquent is sacrosanct in that he gets an opportunity to know about the findings thereon to dispel the imbroglio as to the nature of domestic inquiry conducted against him, The verdict in the inquiry report may either be detrimental to his cause or advantageous to his benefit. In either case this would pave the way to make representation to the disciplinary authority before actually imposing punishment, if any. The very purpose of the rule itself would be defeated in case the copy of the inquiry report is supplied with the order of punishment. The supply of the inquiry report is not an empty formality and the purpose behind it cannot be whittled down by the disciplinary authority. 9. The disagreement with the inquiry report by the disciplinary authority as has been evinced here would otherwise mean the findings are not on the basis of the materials gathered from the inquiry but on some extraneous considerations. It has been laid down that in cases where the disciplinary authority proposes to disagree with the report of the Inquiry Officer, opportunity shall be provided to the delinquent to make his representation against the proposal of inflicting the punishment. This is a case of 'no opportunity' and not of 'adequate opportunity'. The petitioner did not get an opportunity to file representation in this case when the disciplinary authority proposes to disagree with the conclusion of the Inquiry Officer. In State Bank of Patiala v. S. K. Sharma AIR 1996 SC1669 the Supreme Court observed in Para.32 as below: ''.... wherever such principles are held to be implied by the very nature and impact of the order/action the court or the Tribunal should make a distinction between a total violation of natural justice (rule, of audi alteram partern) and violation of a facet of the said rule, as explained in the body of the Judgment. In other words, a distinction must be made between 'no opportunity' and no adequate opportunity, i.e. between 'no notice'/'no hearing' and 'no fair hearing'. (a) In the case of former, the order passed would undoubtedly be invalid (one may call it 'void' or a nullity if one chooses to). In other words, a distinction must be made between 'no opportunity' and no adequate opportunity, i.e. between 'no notice'/'no hearing' and 'no fair hearing'. (a) In the case of former, the order passed would undoubtedly be invalid (one may call it 'void' or a nullity if one chooses to). In such cases, normally, liberty will be reserved for the Authority to take proceedings afresh according to law, i.e. in accordance with the said rule (audi alter am partem')." (emphasis supplied) It is therefore manifest that in the present case the disciplinary authority shall complete the inquiry proceeding observing procedural fairness as required in the circumstances of this case. 10. However, the Standing Counsel for the Corporation has placed before me the decision in Slate Bank of India, v. Samctrendra Kishore Endow 1994 (2) SCC 537 . He then marshalled his contention that interference of this court under Art.226 in an order passed by the disciplinary authority or appellate authority is operative in limited spheres and unbridled laxity is uncalled for. Such a contention is unavailable in view of the following observation in the decision supra, which is quite apposite. "Imposition of appropriate punishment is within the discretion and Judgment of the disciplinary authority. It may be open to the appellate authority to interfere with it but not to the High Court or to the Administrative Tribunal for the reason that the jurisdiction of the Tribunal is similar to the powers of the High Court under Art.226. The power under Art.226 is one of judicial review. It is not an appeal from a decision but a review of the manner in which the decision was made. The power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the authority after according a fair treatment reaches on a matter which it is authorised by law to decide for itself a conclusion which is correct in the eyes of the Court." While exercising the judicial review this court is primarily concerned with the procedural fairness in the decision making process. What is at hand is pernicious orders dictated in violation of 'audi alteram partem' principle. To put it specifically, the petitioner did not get an opportunity to make representation when the disciplinary authority proposes to contradict what the Inquiry Officer said in his report. What is at hand is pernicious orders dictated in violation of 'audi alteram partem' principle. To put it specifically, the petitioner did not get an opportunity to make representation when the disciplinary authority proposes to contradict what the Inquiry Officer said in his report. This plea no doubt calls for an inquiry and that is what is being done here by this court in exercise of judicial review. This is no doubt a permitted field. 11. It is pointed out that the law laid down by the Supreme Court in B, Karunakar's case AIR 1994 SC 1074 operates prospectively. In other words, plea made by the respondents is that Ext. P4 order of penalty had been passed by the second respondent on 27th September 1989 which ipso facto takes the present case out of the purview of the said decision. In support of this proposition the following two decisions were also relied on; namely State Bank of India v. Samarendra Kishore Endow 1994 (2) SCC 537 and State Bank of India v. S. S. Koshal 1994 Supp. (2) SCC 468. In this context the following observation of the apex court in B. Karunakdr's case(3s) supra is very relevant. "What is dispensed with is the opportunity of making representation on the penalty proposed and not of opportunity of making representation on the report of the Inquiry Officer. The latter is always there." What is explicitly taken away by the Constitution (Forty-second Amendment) Act, 1976 is the requirement of providing opportunity to the delinquent to make representation on the penalty proposed as displayed from first proviso to Art.311 (2). In the present case the crucial point is the opportunity to make representation on the report of the Inquiry Officer has become redundant inasmuch as it has been supplied to the petitioner along with Ext. P4 order of punishment. As referred earlier Ext. P3 inquiry report absolves the delinquent of all charges but the disciplinary authority did not disclose it to him in time and the effect of it had been destroyed obliquely. This is a wanton act of unfairness to erode the constitutional safeguard. The question here is not what the petitioner could achieve by receiving a copy of the inquiry report which is totally in favourable to him. This is a wanton act of unfairness to erode the constitutional safeguard. The question here is not what the petitioner could achieve by receiving a copy of the inquiry report which is totally in favourable to him. The question is why did the disciplinary authority refrain from enlightening the delinquent when he proposed to disagree with the conclusions of the Inquiry Officer. When the inquiry report is eschewed nothing remains on record and the action is vitiated for extraneous reasons and considerations. In the premise of these marvellous matrix contra distinctive from the features of the cases cited supra, I do not feel it necessary to. probe into the questions at hand any further. 12. Finally the counsel for the petitioner assiduously pointed out that the disciplinary authority grossly violated Clause (2) of Regulation.59 of the Food Corporation of India (Staff) Regulations, 1971. The said clause runs as follows: "The Disciplinary Authority shall, if it disagrees 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." The discussion hereinbefore indubitably postulates that the disciplinary authority came to the final verdict on disagreement with the findings of the inquiring authority. In such eventuality, the disciplinary authority shall record its reasons for such disagreement. It is apparent that no reasons had been recorded by him in the present case and this is an incurable infirmity and all the more a procedural irregularity. In this context the following observation of the Supreme Court in Ram Kishan v. Union of India 1995 (6) SCC 157 is quite appropriate. "The next question is whether the show cause notice is valid in law. It is true, as rightly contended by the counsel for the appellant, that the show cause notice does not indicate the reasons on the basis of which the disciplinary authority proposed to disagree with the conclusions reached by the Inquiry Officer. The purpose of the show cause notice, in case of disagreement with the findings of the Inquiry Officer, is to enable the delinquent to show that the disciplinary authority is persuaded not to disagree with the conclusions reached by the Inquiry Officer for the reasons given in the inquiry reporter he may offer additional reasons in support of the finding by the Inquiry Officer. In that situation, unless the disciplinary authority gives specific reasons in the show cause on the basis of which the findings of the Inquiry Officer in that behalf is based, it would be difficult for the delinquent to satisfactorily give reasons to persuade the disciplinary authority to agree with the conclusions reached by the Inquiry officer, In the absence of any ground or reason in the show cause notice it amounts to an empty formality which would cause grave prejudice to the delinquent officer and would result in injustice to him. The mere fact that in the final order some reasons have been given to disagree with the conclusions reached by the disciplinary authority cannot cure the defect." This decision makes the issue of a show cause notice to the delinquent imperative in case the disciplinary authority disagrees with the findings of the inquiring authority. 13. In view of the various reasons firmly established and recorded hereinbefore the violation of the principles of natural justice is apparent and manifest unequivocally. This situation as emerged no doubt pinpoints an immediate action of invalidating the impugned orders evidenced by Exts P4 and P10 and absolving the petitioner of all charges levelled against him. This court can no doubt make Exts. P4 and P10 invalid but the petitioner cannot be exonerated at this stage, in view of the decision of the Supreme Gouri in State of Haryana v. Jagdish Chander AIR 1985 SC 984 wherein it is said: "However, the High Court was not justified In straightaway, setting aside the order and directing reinstatement with consequential benefits. In view of the Judgment of this court in E. C.I. L., Hyderabad v. B. Karunakar (A.I.R. 1994 SC 1074) the appropriate course for the State would be to direct an enquiry if they intend to hold and to give an opportunity to the officer concerned to defend himself and then pass appropriate orders. On the basis of the result of the enquiry necessary reliefs need to be moulded." 14. In view of the discussion herein above, Exts. P4 and P10 are set aside. I further direct the second respondent disciplinary authority to afford an opportunity to the petitioner to file representation against the proposal to disagree with the finding of the Inquiry Officer. On the basis of the result of the enquiry necessary reliefs need to be moulded." 14. In view of the discussion herein above, Exts. P4 and P10 are set aside. I further direct the second respondent disciplinary authority to afford an opportunity to the petitioner to file representation against the proposal to disagree with the finding of the Inquiry Officer. After considering such representation and after hearing the petitioner the second respondent shall pass appropriate orders on merits and in accordance with law and also in view of the observations made above and as expeditiously as possible at any rate within a period of three months from the date of receipt of a copy of this Judgment. The Original Petition is disposed of as above. No order as to costs.