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2004 DIGILAW 139 (CAL)

SUSHANTA KUMAR DAS v. FOOD CORPORATION OF INDIA

2004-02-25

MAHEMMAD HABEEB SHAMS ANSARI, SOUMITRA PAL

body2004
ANSARI, J. ( 1 ) THE unsuccessful writ petitioner is the appellant before us being aggrieved by the order of learned Single Judge dismissing the writ petition being W. P. No. 3516 (W) of 2001 by order dated June 26, 2001. ( 2 ) HAVING heard Mr. Sadhan Roy Chowdhury assisted by Mr. Supriyo chattopadhyay, learned Counsel for the appellant-writ petitioner and Mr. Kamal Kr. Chatterjee on behalf of the respondent in the appeal, we are of the view that the only question arising for consideration in the instant appeal is as to whether after issuing the charge-sheet under Regulation 58 of the food Corporation of India (Staff) Regulation, 1971 for imposition of major penalty, for which the rule envisages holding of a regular departmental enquiry, the authority can, after examining the reply to the charge-sheet inflict a minor punishment without holding a regular departmental enquiry. ( 3 ) LEARNED Single Judge in the judgment under appeal relying upon the judgments of the Supreme Court in Food Corporation of India, Hyderabad and Ors. v. A. Prahalada Rao and Anr. , AIR 2001 SC 51 held that "issuance of a charge-sheet under Regulation 58 and thereafter resorting to Regulation 60 per se cannot be said to be an illegality or irregularity. " It was further held that the respondent cannot be restrained from recovering the amount in question from the post retiral benefits of the petitioner-appellant. ( 4 ) FOR a proper appreciation of the contentions rais-ed by respective counsel to which I shall refer to a little later, it would be appropriate to notice the relevant rules. ( 5 ) REGULATION 54 deals with penalties both minor and major. The minor penalties which can be imposed on an employee of the Corporation are inter alia : "54. Penalties : xxx xxx xxx minor Penalties: xxx xxx xxx (iii) recovery from his pay of the whole or part of any pecuniary loss caused by him to the Corporation by negligence or breach of orders; xxx xxx xxx" ( 6 ) REGULATION 58 prescribes the procedure for imposing major penalties. To the extent relevant, the same is extracted hereunder;"58. Penalties : xxx xxx xxx minor Penalties: xxx xxx xxx (iii) recovery from his pay of the whole or part of any pecuniary loss caused by him to the Corporation by negligence or breach of orders; xxx xxx xxx" ( 6 ) REGULATION 58 prescribes the procedure for imposing major penalties. To the extent relevant, the same is extracted hereunder;"58. Procedure for imposing major penalties : (1) No order imposing any of the penalties specified in clauses (v) to (ix) of Regulation 54 shall be made except after an inquiry held; as far as may be, in the manner provided in this regulation and regulation 59, or in the manner provided by the Public Servants (Inquiries) Act, 1850 (37 of 1850), where such inquiry is held under that Act. (2) Whenever the disciplinary authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against an employee of the Corporation, it may itself inquire into or appoint under this regulation or under the provisions of the Public Servants (Inquiries) Act, 1850, as the case may be, an authority to inquire into the truth thereof. Explanation : Where the disciplinary authority itself holds the inquiry, any reference in sub-regulation (7) to sub-regulation (20) and in sub-regulation (22) to the inquiring authority shall be construed as a reference to the disciplinary authority. (3) Where it is proposed to hold an inquiry against an employee of the Corporation under this regulation and Regulation 59, the disciplinary authority shall draw up or cause to be drawn up: (i) the substance of the imputations of misconduct or misbehaviour into definite and distinct articles of charge; (ii) a State of the imputations of misconduct or misbehaviour in support of each article of charge, which shall contain; (a) a statement of all relevant facts including any admission or confession made by the employee. (b) a list of documents by which, an a list of witnesses by whom, the articles of charge are proposed to be sustained. (b) a list of documents by which, an a list of witnesses by whom, the articles of charge are proposed to be sustained. (4) The disciplinary authority shall deliver or cause to be delivered to the employee a copy of the articles of charge, the statement of the imputations of misconduct or misbehaviour and a list of documents and witnesses by which each article of charge is proposed to be sustained and shall require the employee to submit, within such time as may be specified, a written statement of his defence and to State whether he desires to be heard in person. (5) (a) On receipt of the written statement of defence, the disciplinary authority may itself inquire into such of the articles of charge as are not admitted, or if it considers it necessary to do so, appoint under sub-regulation (2), an inquiring authority for the purpose; and where all the articles of charge have been admitted by the employee in his written statement of defence, the disciplinary authority shall record its findings on each charge as it may think fit and shall act in the manner laid down in Regulation 59. (b) If no written statement of defence is submitted by the employee, the disciplinary authority may itself inquire into the articles of charge or may, if it considers it necessary to do so, appoint under sub-regulation (2), an inquiring authority for the purpose. (c) Where the disciplinary authority itself inquires into any article of charge or appoints an inquiring authority for holding an inquiry into such charge, it may, by an order, appoint an employee of the corporation (or of any State or Central Govt. Employees) or a legal practitioner, to be known as the 'presenting Officer' to present on its behalf the case in support of the articles of charge. (6) xxx xxx xxx (7) The employee shall appear in person before the inquiring authority on such day and at such time within ten working days from the date of receipt by him of the articles of charge and the statement of the imputations of mis-conduct or misbehaviour, as the inquiring authority may, by a notice in writing, specify in this behalf, or within such further time, not exceeding ten days, as the inquiring authority may allow. (8) xxx xxx xxx (9) If the employee who has not admitted any of the articles of charge in his written statement of defence or has not submitted any written statement of defence, appears before the inquiring authority, such authority shall ask him whether he is guilty or has any defence to make and if he pleads guilty to any of the articles of charge, the inquiring authority shall record the plea, sign the record and obtain the signature of the employee thereof. (10) The inquiring authority shall return a finding of guilt in respect of these articles of charge to which the employee pleads guilty. (11) xxx xxx xxx (12) xxx xxx xxx (13) xxx xxx xxx (14) On the date fixed for the inquiry, the oral and documentary evidence by which the articles of charge are proposed to be proved,- shall be produced by or on behalf of the disciplinary authority. The witnesses shall be examined by or on behalf of the Presenting Officer and may be cross-examined by or on behalf of the employee. The presenting Officer shall be entitled to re-examine the witnesses or any points on which they have been cross-examined, but not on any new matter without the leave of the inquiring authority. The inquiring authority may also put such questions to the witnesses as it thinks fit. (15) xxx xxx xxx (16) When the case for the disciplinary authority is closed, the employee shall be required to State his defence, orally or in writing as he may prefer. If the defence is made orally, it shall be recorded and the employee of the Corporation shall be required to sign the record. In either case, a copy of the statement of defence shall be given to the Presenting Officer, if any, appointed. (17) The evidence on behalf of the employee shall then be produced. The employee may examine himself on his own behalf, if he so prefers. The witnesses produced by the employee shall then be examined and shall be liable to cross-examination, re-examination and examination by the inquiring authority according to the provisions applicable to the witnesses for the disciplinary authority. (17) The evidence on behalf of the employee shall then be produced. The employee may examine himself on his own behalf, if he so prefers. The witnesses produced by the employee shall then be examined and shall be liable to cross-examination, re-examination and examination by the inquiring authority according to the provisions applicable to the witnesses for the disciplinary authority. (18) xxx xxx xxx (19) XXX XXX XXX (20) xxx xxx xxx (21) (a) Where a disciplinary authority competent to impose any of the penalties specified in Clauses (i) to (iv) of Regulation 54 (but not competent impose any of the penalties specified in Clauses (v) to (ix) of Regulation 54) has itself inquired into or caused to be inquired into the articles of any charge and that authority, or having regard to its won findings or having regard to its decision on any of the findings of any inquiring authority appointed by it, is of the opinion that the penalties specified in Clauses (v) to (ix) of Regulation 54 should be imposed on the employee that authority shall forward the records of the inquiry to such disciplinary authority as is competent to impose the last mentioned penalties. (b) xxx xxx xxx (22) xxx xxx xxx (23) (i) After the conclusion of the inquiry, a report shall be prepared and it shall contain: (a) xxx xxx xxx (b) xxx xxx xxx (c) xxx xxx xxx (d) the findings on each article of charge and the reasons therefor. " ( 7 ) REGULATION 59 deals with the power of the disciplinary authority and the action to be taken on the enquiry report. To the extent relevant, clauses (3) and (4) of Regulation 59 are extracted hereunder:"59. Action on the inquiry report: (1) xxx xxx xxx (2) xxx xxx xxx (3) If the disciplinary authority having regard to its findings on all or any of the articles of charge is of the opinion that any of the penalties specified in Clauses (i) to (iv) of Regulation 54 should be imposed on the employee, it shall, notwithstanding anything contained in Regulation 58, make an order imposing such penalty. 4) If the disciplinary authority having regard to its findings on all or any of the articles of charge and on the basis of the evidence adduced during the inquiry, is of the opinion that any of the penalties specified in Clauses (v) to (ix) of Regulation 54 should be imposed on the Corporation employee, it shall make an order imposing such penalty and it shall not be necessary to give the Corporation employee any opportunity of making representation on the penalty proposed to be imposed. XXX XXX XXX" ( 8 ) THE procedure for imposing minor penalties is laid down in regulation 60 and for the sake of convenience the same is extracted hereunder:"60. Procedure for imposing minor penalties : (1) Subject to the provisions of sub-regulation (3) of Regulation 59, no order imposing on an employee any of the penalties specified in Clauses (i) to (iv) of Regulation 54 shall be made except after: (a) informing the employee irr writing of the proposal to take action against him and of the imputations of misconduct or misbehaviour on which it is proposed to be taken, and giving him a reasonable opportunity of making such representation as he may wish to make against the proposal; (b) holding an inquiry in the manner laid down in sub-regulations (3) to (23) of Regulation 58, in every case in which the disciplinary authority is of the opinion that such inquiry is necessary; (c) taking the representation, if any, submitted by the employee under clause (a) and the record of inquiry, if any, held under clause (b) into consideration. (d) recording a finding on each imputation of misconduct or misbehaviour. (2) Notwithstanding anything contained in clause (b) of sub-regulation (1), if in a case it is proposed, after considering the representation, if any, made by the employee under clause (a) of the sub-regulation, to withhold increment of pay and such withholding of increments is likely to affect adversely the amount of retirement benefits payable to the employee or to withhold increments of a pay for a period exceeding 3 years or to withhold increments of pay with cumulative effect for any period, an inquiry shall be held in the manner laid down in sub-regulations (3) to (23) of Regulation 58 before making any order imposing on the employee any such penalty. (3) The record of the proceedings in such cases shall include: i) a copy of the intimation to the employee of the proposal to take action against him; ii) a copy of the statement of imputations of misconduct or misbehaviour delivered to him; iii) his representation, if any; iv) the evidence produced during the inquiry; v) the findings on each imputation of misconduct or misbehaviour; and vi) the orders on the case together with the reasons thereof. " ( 9 ) THERE is no dispute in the matter on hand that no departmental enquiry was held as contemplated in sub-regulations (3) to (23) of Regulation 58. There is also no dispute that the charge-sheet was issued under regulation 58 and petitioner was informed that an enquiry is proposed to be held under the said regulation. The substance of the imputations of misconduct was communicated along with statement of articles of charge framed against the petitioner. The list of documents by which the article of charges was to be sustained was furnished to the petitioner (See :-annexure-P-1 at Pg. 30 of the Paper Book ). It is thus apparent that in terms of sub-regulation (3) of Regulation 58 the disciplinary authority had proposed the holding of an enquiry under Regulation 58. ( 10 ) UNDER Regulation 58 being the procedure for imposing major penalties, a regular enquiry is envisaged, the substance of the imputation of misconduct and list of documents by which the article of charge are proposed to be sustained is to be furnished to the delinquent and on receipt of written statement of defence, the disciplinary authority is empowered to itself conduct the enquiry or to appoint an enquiring officer [rg. 58 (5a)]. The enquiring authority is to return a finding on the charge levelled and under Regulation 59, the disciplinary authority is conferred the power, having regard to its findings or the findings arrived at by the enquiry officer, to impose any of the penalties specified in Clauses (i) to (iv) of Regulation 54 (being minor penalties ). The disciplinary authority is also empowered to impose any of the major penalties specified in Clauses (v) to (ix) of regulation 54. ( 11 ) WHEREAS in the case of minor penalties under Regulation 60, disciplinary authority is conferred the discretion eitherto hold or not to hold an enquiry in a particular case. The disciplinary authority is also empowered to impose any of the major penalties specified in Clauses (v) to (ix) of regulation 54. ( 11 ) WHEREAS in the case of minor penalties under Regulation 60, disciplinary authority is conferred the discretion eitherto hold or not to hold an enquiry in a particular case. As held by the Supreme Court in A. Prahalada rao's case, cited supra, it is forthe disciplinary authority to decide whether regular departmental enquiry as contemplated under Regulation 58 for imposing major penalty should be followed or not. The procedure for imposing minor penalties is summary in nature. ( 12 ) MR. Roy Chowdhury, learned Counsel for the appellant contended that the respondent authority having issued the charge-sheet for imposing major penalty and without conducting any enquiry as envisaged in regulation 58 could not have imposed the minor penalty. The submission was sought to be elaborated by submitting that as soon as the major penalty charge-sheet had been issued, no conclusions could have been arrived at by the disciplinary authority as to the guilt of the petitioner without holding a departmental enquiry and, therefore, imposition of minor penalty is wholly illegal void and contrary to the procedure prescribed. It was further submitted that if the disciplinary authority was satisfied that no case for major penalty is made out, the only course left for the disciplinary authority was to withdraw the charge-sheet issued in the first instance and then to resort to the procedure prescribed in terms of Regulation 60 for imposing of minor penalty. ( 13 ) MR. Kamal Chattopadhyay, learned Counsel for the respondent submitted that it is only in the case of imposing major penalty that a regular enquiry is postulated under Regulation 58 which begins with the words" no order imposing any of the penalties specified in Clauses (v) to (ix) of regulation 54 shall be made except after an enquiry held. " It was further contended that as in the case on hand a minor penalty is imposed, there is no warrant for holding of a regular departmental enquiry. The above contentions were sought to be elaborated by Mr. Chattopadhyay by submitting that the procedure laid down by the regulations being safe guards prescribed to protect the employee from arbjtrary action, a fair procedure has been evolved for adequate representation to the employee before imposing minor penalty without conducting an enquiry. The above contentions were sought to be elaborated by Mr. Chattopadhyay by submitting that the procedure laid down by the regulations being safe guards prescribed to protect the employee from arbjtrary action, a fair procedure has been evolved for adequate representation to the employee before imposing minor penalty without conducting an enquiry. As only a minor penalty has beenimposed, respondent cannot be asked to justify its actions with reference to the requirements of the procedure laid down for major penalties. ( 14 ) AS noticed supra, the charge-sheet was issued under Regulation 58 calling upon the petitioner to submit his statement of defence on or before the dates specified and the petitioner was further informed that if he does not appear in person before the enquiry authority or otherwise fails or refuses to comply with the provisions of Regulation 58 of the FCI (Staff) Regulation, the enquiry authority may hold the enquiry against him ex-parte. The petitioner submitted his representation to the said charge-sheet denying the charges of misconduct. No enquiry was held either by the disciplinary authority or by appointing an enquiry officer. However, by order dated May 20, 2000, the disciplinary authority after considering the representation of the petitioner held as under:"and WHEREAS the undersigned is of the view that Shri Das is guilty of the allegation relating to causing of financial loss to the corporation and a penalty of recovery of 50% of the loss will meet the ends of justice. NOW, THEREFORE, the undersigned in exercise of the powers conferred under Regulation 56 read with Regulation 54 of the F. C. I. (Staff) Regulation, 1971 hereby imposes a penalty of recovery of 50% of the loss i. e. Rs. 1,82,120. 00 (50% of Rs. 3,64,240. 00) upon the said Shri S. K. Das. " ( 15 ) AS already noticed supra, under Clause 3 of Regulation 59, disciplinary authority is empowered to impose any of the minor penalties specified in Clauses (i) to (iv) of Regulation 54. This the disciplinary authority can do having regard to the findings on all or any of the articles of charge. Such findings can only be arrived at a regular enquiry to be conducted either by the disciplinary authority himself or by appointing an enquiry officer. This the disciplinary authority can do having regard to the findings on all or any of the articles of charge. Such findings can only be arrived at a regular enquiry to be conducted either by the disciplinary authority himself or by appointing an enquiry officer. In other words, such action even of imposing minor penalty can be taken by the disciplinary authority, if it is not itself the enquiry authority then based upon the enquiry report of the enquiring authority. We are, therefore, of the view that as the disciplinary authority had issued a charge-sheet under regulation 58, then the procedure prescribed under Regulation 58 had to be followed and a regular enquiry as envisaged under Regulation 58 ought to have been conducted before imposing any penalty. A finding of guilt on the charge leveled could be arrived at only after a regular departmental enquiry and after affording the petitioner-delinquent opportunity to examine witnesses on his own behalf and to cross-examine the witnesses produced on behalf of the management. It is based upon the inquiry report in terms of regulation 59 (3) disciplinary authority is empowered to take further action as to whether any of the penalties minor or major is to be imposed having regard to the findings arrived at in the enquiry with respect to the charge levelled. ( 16 ) IN the present case, if the procedure under Regulation 58 had been followed and instead of a major penalty a minor penalty had been imposed no fault could be found therewith. Such action would be in conformity with Regulation 58 read with Regulation 59 (3 ). However, as no enquiry was held as envisaged under Regulation 58 and minor penalty was imposed, we are of the view that the impugned order imposing penalty cannot be sustained. In the instant case, the procedure adopted is a hybrid procedure not postulated or envisaged under the regulations. ( 17 ) THE judgment of the Supreme Court in A. Prahalada Rao's case, cited supra, is of no assistance as in that case Regulation 60 alone has been construed. Supreme Court rejected the contention that in all cases where employee disputes his liability a full-fledged enquiry should be held. It is for the disciplinary authority to decide whether regular departmental enquiry as contemplated under Regulation 58 for imposing major penalty should be followed or not. Supreme Court rejected the contention that in all cases where employee disputes his liability a full-fledged enquiry should be held. It is for the disciplinary authority to decide whether regular departmental enquiry as contemplated under Regulation 58 for imposing major penalty should be followed or not. In the case on hand, as noticed supra, the charge-sheet is issued under Regulation 58 but without following the procedure prescribed thereunder a minor penalty has been imposed. Such action cannot be sustained. ( 18 ) A distinction has been made under the regulations between a case where a charge-sheet is issued under Regulation 58, which envisages an enquiry to be conducted before arriving at the conclusion as to the guilt of the delinquent and the case where resort is had to the summary procedure, the disciplinary authority invokes the powers vested in it under regulation 60. In the case on hand the disciplinary authority has not invoked the powers under Regulation 60. ( 19 ) IN the circumstances the question as posed by us in the earlier part of this judgment is to be answered, thus; even in a case where the charge-sheet is issued under Regulation 58 for imposing a major penalty the disciplinary authority cannot without holding an enquiry as envisaged impose a minor penalty. In a case where charge-sheet is issued under regulation 58 for imposition of a major penalty but after receiving the defence statement in reply to the said charge-sheet from the delinquent and considering the same, the disciplinary authority forms an opinion that no enquiry is to be held and minor punishment is proposed to be inflicted then the disciplinary authority is required to adopt the procedure prescribed under Regulation 60 and thereby informing the delinquent in writing of the proposal to take action against him and giving him a reasonable opportunity of making such representation as he may wish to make against the proposal. It is not disputed that no such intimation in writing was issued to the petitioner as contemplated in Regulation 60. ( 20 ) FOR the reasons aforestated the impugned order of penalty, being not in accordance with the rules, has to be quashed and set aside. It is not disputed that no such intimation in writing was issued to the petitioner as contemplated in Regulation 60. ( 20 ) FOR the reasons aforestated the impugned order of penalty, being not in accordance with the rules, has to be quashed and set aside. In the result appeal is allowed, judgment under appeal is set aside, writ petition is accordingly allowed, impugned order of punishment is quashed and set aside, however, in the facts and circumstances of the case there shall be no order as to costs.