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2003 DIGILAW 904 (ALL)

H. N. Srivastava v. Food Corporation of India

2003-04-22

S.K.SINGH

body2003
JUDGMENT : S.K. Singh, J. By means of this writ petition, the Petitioner has challenged the order passed by the Zonal Manager (North), Food Corporation of India/Respondent No. 2 by which, he has imposed a penalty of recovery of Rs. 1,99,897 against the Petitioner and also his reversion to the post of A.G.-II (D) for a period of four years. 2. Brief facts for decision of the writ petition can be summarised thus: The Petitioner has been working as Assistant Manager (Depot) with the Respondents, Food Corporation of India (hereinafter referred to as the Corporation) and while, he was posted at the Food Storage Depot, Gola, it is alleged that during 1994-95 and 1995-96, he failed to maintain absolute integrity, devotion to duty and thus the Petitioner was proceeded on five charges in respect to which charge-sheet was issued to him. On submission of reply and completion of enquiry proceedings, the enquiry officer submitted his report on 31.7.2002 which has been served on the Petitioner along with show cause notice dated 16.10.2002 (Annexure-3 to the writ petition). The Petitioner submitted his detail reply to the finding so given against him by the Enquiry Officer and in respect to the show cause notice referred above, upon which the Respondent No. 2 passed the impugned order stated above, the validity of which is to be examined in this petition. 3. When the writ petition was presented, in presence of learned Counsel for the Respondents, time was allowed to file counter-affidavit upon which, pleadings have been exchanged between the parties and now on exchange of counter-affidavit and rejoinder-affidavits, as jointly prayed, the matter is being heard and is being finally decided. 4. It has to be mentioned at this stage that although learned Counsel for the Respondents raised a preliminary objection that the writ petition is to be dismissed on the ground of availability of alternative remedy but with the consent of parties, arguments were heard on the question of preliminary objection and also on merits and thus, both the issues are to be dealt together. 5. Heard Sri Arvind Srivastava who appeared for the Petitioner and Sri Satya Prakash, learned advocate who appeared for the Respondents. 6. 5. Heard Sri Arvind Srivastava who appeared for the Petitioner and Sri Satya Prakash, learned advocate who appeared for the Respondents. 6. Learned Counsel for the Petitioner submits that so far preliminary objection regarding maintainability of writ petition is concerned, on the facts of the present case, it is not available to the Respondents as they have never pressed this issue when the writ petition was entertained and pleadings were called upon and thus, now after filing of the counter-affidavit and rejoinder-affidavit, unless this Court feels that serious disputed questions of facts are to be adjudicated and a finding of fact is to be recorded, the writ petition is not to be dismissed on the ground of alternative remedy. It is also argued that the action of Respondents is in clear violation of principles of natural justice and the proceedings are without jurisdiction inasmuch as, the disciplinary authority while punishing the Petitioner has relied on the finding given by the Enquiry Officer which are beyond the charges on which the Petitioner was proceeded. It is then argued that the Petitioner was proceeded on five charges and all related to misappropriation in the manner as detailed in separate charges but so far Charge Nos. 2, 3 and 5 are concerned, the Enquiry Officer has clearly exonerated the Petitioner and so far Charge Nos. 1 and 4 are concerned, no misappropriation has been found causing any financial loss to the Corporation and the only thing which was found against the Petitioner is that the Petitioner has not carefully discharged his duties. It is submitted that on the aforesaid finding, at the most, it can be said that the Petitioner was slightly negligent in discharging the duty but as that was not the charge on which the Petitioner was proceeded and in any view of the matter, that cannot be said to be the misconduct warranting the impugned punishment. It is then submitted that the Petitioner has given his reply to the show cause notice on receipt of the report of the Enquiry Officer by which he was expected to submit his response in respect to the finding relating to Item Nos. 1 and 4 but the disciplinary authority even without showing his disagreement and giving any reasoning for dis-agreeing with the Enquiry Officer in respect to Item Nos. 1 and 4 but the disciplinary authority even without showing his disagreement and giving any reasoning for dis-agreeing with the Enquiry Officer in respect to Item Nos. 2, 3 and 5, while passing the order of punishment by disagreeing with the finding of the Enquiry Officer, Petitioner has been held to be responsible for the aforesaid charges also which the learned Counsel for Petitioner submits is clearly impermissible. It is argued that the disciplinary authority has not applied his mind to the fact and exhaustive reply/representation submitted to the show cause notice and he in a most arbitrary and apparently in a routine manner, has discharged the job of concluding the disciplinary proceedings by awarding the impugned punishment which on its plain examination will satisfy the Court that the disciplinary authority has not cared even to look into the Petitioner's detail reply and the facts so pleaded which clearly results in violation of principles of natural justice. 7. In response to the aforesaid submission, learned Counsel appearing for the Respondents submits that as the Petitioner has alternative remedy of filing appeal and thereafter the review under Para 68 and 74 of the Food Corporation of India Staff Regulation, 1971 (hereinafter referred to as the Regulation) the writ petition is liable to be dismissed on this ground alone. In support of the aforesaid submission, learned Counsel places reliance on a decision given by the Apex Court in the case of Sheela Devi v. Jaspal Singh (1991) 1 SCC 209 and two unreported decisions in the case of Ghanshyam Misra v. F.C.I. and Ors. W.P. No. 899 of 2000 and Ghanshyam Misra v. F.C.I., W.P. No. 16 (S/B) of 2001. On the merits, in respect to the contention of the Petitioner, it is argued that the disciplinary authority is fully empowered to disagree with the finding of the Enquiry Officer and therefore, the disciplinary authority having taken into consideration the finding of the Enquiry Officer in relation to Charge Nos. 1 and 4 by which the Petitioner has been found to be guilty and on examination of over all situation, on the facts has also found that the Enquiry Officer has improperly cleared the Petitioner in respect to Charge Nos. 1 and 4 by which the Petitioner has been found to be guilty and on examination of over all situation, on the facts has also found that the Enquiry Officer has improperly cleared the Petitioner in respect to Charge Nos. 2, 3 and 5 on technical grounds and, therefore, on the finding that the Petitioner is guilty of serious lapses leading to misappropriation causing pecuniary loss to the Corporation, has rightly passed the impugned order. It is argued that the finding given by the Enquiry Officer has been minutely examined by the disciplinary authority and thereafter, finding of the serious lapses on the part of the Petitioner, causing loss to the Corporation have been arrived at which is clearly finding of fact, and thus no interference is called for by this Court. 8. In view of the aforesaid submission as noted above, pleadings and material as has come before this Court have been examined. 9. In view of the preliminary objection having been raised by learned Counsel for the Respondents, for the dismissal of the writ petition on the ground of alternative remedy, it is to be dealt with, before proceeding to deal with the matter on merits. The decision as has been relied upon by learned Counsel as given in Sheela Devi's case (supra) do not contain any detail in respect to the facts of the case. The matter related to the Rent Control proceedings and thus, it can be gathered that the Apex Court, on the facts of that case, has directed the party to approach revisional forum before approaching the High Court. It is also stated in that judgment that no reason has been given by the Respondents for not availing the remedy of revision. Here in the present case, it is pointed out that the action of the Respondent is in violation of principles of natural justice and the disciplinary authority has proceeded beyond the charges on which the enquiry progressed and, therefore, reliance on the decision referred above, do not help the Respondents. Other two un-reported decisions as has been given in the case of Ghanshyam Misra (supra) appears to be the decisions given by this Court relegating the Petitioner to approach the forum so provided under the regulation, at the very initial stage when the writ petition was filed. Other two un-reported decisions as has been given in the case of Ghanshyam Misra (supra) appears to be the decisions given by this Court relegating the Petitioner to approach the forum so provided under the regulation, at the very initial stage when the writ petition was filed. In the aforesaid decision, the writ petition was not entertained and it was dismissed on the ground of alternative remedy but here is the case where in presence of learned Counsel for the Respondents, counter-affidavit was called and no objection in respect to the alternative remedy was raised and thus, counter-affidavit and rejoinder-affidavit have been exchanged and full detail of the proceedings have come before this Court and, therefore, unless this Court finds that even on preliminary screening of the matter, various disputed questions of facts will have to be tried and a finding will have to be recorded on those aspects, this Court is of the view that this will not be a proper exercise to dismiss the writ petition on the ground of alternative remedy at this stage. It has been repeatedly said by this Court as well as by the Apex Court that alternative remedy cannot be said to be absolute bar to entertain writ petition and where there is violation of principle of natural justice or counter and rejoinder-affidavit have been exchanged and the Court is not required to go into the serious disputed question of facts, the writ petition need not to be dismissed on the ground of alternative remedy. Reference in this respect, can be given to the decisions as has been given in Jagidhwar Prasad and Ors. v. District Magistrate and Ors. 2000 (1) UPLBEC 670 ; Babubhai Muljibhai Patel Vs. Nandlal Khodidas Barot and Others, AIR 1974 SC 2105 ; Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and Others, AIR 1999 SC 22 and Shatrughan Nishad and others Vs. District Magistrate/Administrator/Chairman, Kishan Sahkari Chini Mills, Sultanpur and others, (2000) 3 AWC 2452 . Accordingly, objection of the learned Counsel for the Respondents in respect to maintainability of writ petition is overruled. 10. On examination of the dispute, on merits, the matter appears to be very simple. Petitioner was proceed on the charges of misappropriation which is contained in 5 articles which requires to be reproduced here in a concise manner: Article No. I He misappropriated 89 bags weighing 83-50-000 Qtls. 10. On examination of the dispute, on merits, the matter appears to be very simple. Petitioner was proceed on the charges of misappropriation which is contained in 5 articles which requires to be reproduced here in a concise manner: Article No. I He misappropriated 89 bags weighing 83-50-000 Qtls. Wheat at Mandi Yard Gola from stock No. R/2/1. He caused financial loss of Rs. 33,577 (@ Rs. 402 per Qntl.) in connivance with Shri Mohd. Ubaid, A.G.-II (D) for his personal gain. Article-II He misappropriated 6499 bags = 6412.94.000 Qtls. Wheat during 1.4.1995 to 30.6.1996 valuing Rs. 25,78,001.18 (@ Rs. 402 per Qtl.) in connivance with Shri Mohd. Ubaid, A.G.-II (D) for his personal gain. Article-III He misappropriated about 228 A' class gunnies valuing Rs. 4,560 in connivance with Shri Mohd. Ubaid, Ex. A.G.-II (D) for his personal gain. Article-IV He misappropriated 8316 B.T. 'A' class gunnies by showing false replacement at F.S.D. Gola valuing Rs. 1,66,320 in connivance with Shri Mohd. Ubaid, Ex. A.G.-II (D) for his personal gain. Article-V He misappropriated 697 B.T. 'A' class gunnies by showing false replacement at Railhead Gola valuing Rs. 13,940 for his personal gain. Thus Shri H. N. Srivastava, A.M. (D) contravened the Regulation 31* 32 read with 32A of F.C.I. (Staff) Regulation, 1971 and caused total Rs. 27,62,821.18 to the Organisation. 11. The Enquiry Officer after taking evidence has dealt the matter in detail and submitted his report on 31.7.2000. So far charges at article Nos. 2, 3 and 5 are concerned, the Petitioner has been completely exonerated. So far as the articles 1 and 4 are concerned, the Enquiry Officer has clearly found that the charge of misappropriation and causing pecuniary loss have not been proved. After due verification of the details in the concerned register and on verification of the stock physically, no difference was found/noticed. The only wrong which was found on the part of the Petitioner appears to be that there was some irregularity in properly recording the details in the concerned register and the stock stored at various places in the Depot. It was clearly mentioned by the Enquiry Officer that he is guilty of not carefully carrying out the job which clearly indicates some negligence on his part. It was clearly mentioned by the Enquiry Officer that he is guilty of not carefully carrying out the job which clearly indicates some negligence on his part. It will be useful to be noticed at this stage that the Petitioner has throughout stated that he is not the person incharge of preparing and maintenance of the concerned register and to get physical tally in that respect, rather it is one Rajeshwar Singh who is A.G.-I (D) and Mohd. Ubaid A.G.-II (D) who are the main persons being incharge who can be said to be responsible for the alleged lapses which are being pointed out. The report of the Enquiry Officer on its reading in respect to the charges in relation to Item Nos. 1 and 4 for which some negligence has been found against the Petitioner and even in respect to Item Nos. 2, 3 and 5 clearly indicates that the Enquiry Officer himself has found one Rajeshwar Singh and Mohd. Ubaid the two officials to be mainly responsible for the lapses in respect to Item Nos. 1 and 4 and at the same time, the Petitioner was also found to be responsible for the same. The conclusion in the report of the Enquiry Officer in respect to Item No. 1 of the charges as is contained in Clauses (9) and (10) can be quoted here : It is true that total stock position has been tallied by Sh. Mohd. Quamar with the Master Ledger of F.C.I. Gola for the month of September, 1995 and no difference was noticed. Not only the C.O. is responsible for these 89 bags being a supervisory officer, Shri Rajeshwar Singh, Depot I/C is wholly and personally responsible in addition to the custodian. The custodian Mohd. Ubaid has already been expired as such no need to comment but Shri Rajeshwar Singh is liable for answering these lapses. The finding in respect to charges at Item No. 4 on conclusion by the Enquiry Officer can also be used to be referred here: No doubt, Shri Rajeshwar Singh, as Shri Mohd. Ubaid has died, is answerable for this negligence on his part. It proves that the replacement has been done during the operation at Gola and gunnies have not been misappropriated except these have not been entered on day-to-day basis, for which A.G.-I (D) is responsible and it also reflects on the part of Supervisory Officer. 12. Ubaid has died, is answerable for this negligence on his part. It proves that the replacement has been done during the operation at Gola and gunnies have not been misappropriated except these have not been entered on day-to-day basis, for which A.G.-I (D) is responsible and it also reflects on the part of Supervisory Officer. 12. Although, Mohd. Ubaid referred above had died before start of proceeding but so far as Rajeshwar Singh is concerned, it was clearly found by the Enquiry Officer that he is the main person who is personally responsible for the lapses but admittedly, he has not been proceeded in any manner by the Respondents for which there is absolutely no reason or justification in the counter-affidavit. Rather in relation to the averments by the Petitioner as is contained in Para 12 of the writ petition in which arbitrariness and discriminatory approach on the part of the Respondents have been clearly highlighted, the Respondents have answered the same by giving reply in para 10 of the counter-affidavit in which it has been just stated that action against Mohd. Ubaid could not be taken as he died and there was no involvement of Rajeshwar Singh Assistant Grade I (D) which is apparently false. 13. In view of the aforesaid, it is clear that the Respondents have chosen to proceed against the Petitioner alone by not taking any action against two other officials who were found to be main person responsible for the alleged lapses, without indicating any justification of any kind. Besides the aforesaid, when the matter came to the disciplinary authority on submission of report by the Enquiry Officer, pursuant to the show cause notice dated 16.10.2000 along with which copy of Enquiry Officer's report was annexed, the Petitioner submitted his detail reply, obviously in relation to the finding as has come against him i.e., in respect of articles 1 and 4. The disciplinary authority although has referred in its order that he has gone through the contents of charge-sheet, the enquiry report and the reply submitted by charged Officer, but on a reading of the order, it do not indicate that a single word of the reply, which has been submitted by the Petitioner pursuant to the show cause notice have been even referred what to say to have been discussed. The very purpose of giving opportunity of submitting representation/reply on receipt of Enquiry Officer's report is that the charged employee may submit his explanation by giving reason, which on examination the disciplinary authority may or may not accept but unless there is some indication in the order of disciplinary authority, either by giving details of facts and reasons in relation to the reply or something in respect thereof, before the Court, there will be no criteria to judge and infer that the disciplinary authority has applied his mind to the explanation so offered by the charged employee. In the absence of any discussion in order, the very purpose of providing opportunity to the charged employee stands defeated and frustrated which leads to the gross violation of principles of natural justice. The aforesaid situation emerges even at the first glance of the impugned order. Otherwise also, it is clear that the disciplinary authority appears to have proceeded on some misconception of the facts i.e., to say that he has passed the impugned order on the premises that the finding of the Enquiry Officer on Item Nos. 1 and 4 establishes the misappropriation by the Petitioner resulting into pecuniary loss to the Corporation and it is for this misconduct the impugned penalty have been levied. It is clear that the disciplinary authority has punished the Petitioner for his misconduct of misappropriation, causing pecuniary loss to the Corporation which on the facts of the present case, was not available to the said authority. As observed above the Enquiry Officer has never found any misappropriation and pecuniary loss to the Corporation and in fact, nothing short was found in respect to various items and the only lapse which was found was that there was no proper corresponding entry and thus the Enquiry Officer has reported to be a case of negligent discharge of the duty and at the same time, two officials referred above also to be mainly personally responsible for the same but as indicated they have not been proceeded at all out of which, for one, there is absolutely no justification of any kind. It is thus clear that the disciplinary authority has proceeded to pass the impugned order on totally non-existent facts. It is thus clear that the disciplinary authority has proceeded to pass the impugned order on totally non-existent facts. Besides aforesaid, the mind of the disciplinary authority appears to have been influenced for the charges in relation to articles 2, 3 and 5 although the disciplinary authority has completely exonerated the Petitioner in relation to the aforesaid articles. The disciplinary authority by assigning reason that the Enquiry Officer has held the charges to be not proved on some technical ground but he is of the view that the Petitioner cannot absolve himself from the guilt for the lapses in respect to the aforesaid charges as well has passed the impugned order. Neither the disciplinary authority has assigned any reason whatsoever for disagreeing with the finding of the Enquiry Officer in relation to those charges nor in the show cause notice issued to the Petitioner, there happens to be any indication by the disciplinary authority on that score, entitling the Petitioner to make his representation in that connection and thus this Court is of the view that taking into account the alleged lapses on the part of the Petitioner in respect to Charges Nos. 2, 3 and 5 and passing of the impugned order on that basis, as well clearly vitiates the entire decision. 14. It has been repeatedly emphasised by the Apex Court that the reasons are necessary for arriving at a conclusion, as it is indicative of the mind of concerned authority who has dealt the subject-matter of the decision, whether it is purely judicial or quasi-judicial. The observation in this respect as is contained in the decision given by the Apex Court in the case of Union of India (UOI) Vs. Mohan Lal Capoor and Others, AIR 1974 SC 87 , will be useful to be quoted here: Reasons are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject-matter for a decision whether it is purely administrative or quasi-judicial. They should reveal a rational nexus between the facts considered and the conclusions reached. Only in this way can opinion or decisions recorded be shown to be manifestly just and reasonable. Reference can be given to another decision of this Court as has been quoted in the decision given in the case of Nasiruddin Vs. They should reveal a rational nexus between the facts considered and the conclusions reached. Only in this way can opinion or decisions recorded be shown to be manifestly just and reasonable. Reference can be given to another decision of this Court as has been quoted in the decision given in the case of Nasiruddin Vs. State of U.P. and Another, (2000) 2 UPLBEC 1210 which is as under: The State Government failed to record reasons as contemplated by law instead it merely recorded its conclusion. Recording of reasons implies that the explanation furnished by the Petitioner should have been considered objectively and if the same was not found satisfactory, reasons should have been stated. The State Government has merely stated the charge, the explanation and then it has recorded its conclusions without recording reasons. To support the proposition that when the enquiry report favours the Petitioner and the disciplinary authority intends to disagree with the same, unless an opportunity is given in that respect, the disagreement cannot be done, a reference can be given to the observations as is contained in the decision of the Apex Court as has been given in the case of Punjab National Bank v. Kunj Behari Mishra, 1998 (6) Supreme Today 486, relevant portion of which is as under: When like in the present case, the inquiry report is in favour of the delinquent officer but the disciplinary authority proposes to differ with such conclusions then that authority which is deciding against the delinquent officer must give him an opportunity of being heard for otherwise he would be condemned unheard in departmental proceedings what is of ultimate importance is the finding of the disciplinary authority. 15. In view of the analysis made above, it is clear that on the facts and finding so given by the Enquiry Officer, the Petitioner was never found to be guilty of misappropriation causing pecuniary loss to the Corporation, rather slight negligence in discharge of duty was found but the disciplinary authority by not properly noticing the finding of the Enquiry Officer, without assigning any reason in respect to the reply submitted by the Petitioner and even by accepting the charges in respect to Item Nos. 2, 3 and 5 which have not been found to be proved against the Petitioner and for which, he was never given any opportunity, the impugned decision has been taken. 2, 3 and 5 which have not been found to be proved against the Petitioner and for which, he was never given any opportunity, the impugned decision has been taken. Thus the impugned order is vitiated in law, entitling the Petitioner to get relief from this Court. 16. For the reasons recorded above, this writ petition succeeds and is allowed. The impugned order passed by the Respondent No. 2 (Annexure-5 to the writ petition) dated 21.5.2002 is hereby quashed.