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2007 DIGILAW 144 (CAL)

UTPAL CHOWDHURY v. FOOD CORPORATION OF INDIA

2007-03-05

JAYANTA KUMAR BISWAS

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( 1 ) THE petitioner is aggrieved by the decisions of the corporation rejecting his application for voluntary retirement. The scheme, introduced by notification dated June 29, 2004, was titled "voluntary Retirement Scheme for the officers/officials of the corporation notwithstanding Regulation 22-A of FCI (Staff) Regulations, 1971. " In its para I. 2 it was said, "the Corporation will have the right not to grant voluntary retirement to any of Officers/officials or the reasons to be recorded in writing. " In para I. 3 it said, "the scheme will be in operation for a period of three months from the date of its notification. " Paragraph IV. 3 of the scheme provided, "care shall be taken to ensure that highly skilled and qualified officers and staff are not given the option. Further, voluntary retirement could be denied in the following circumstances: (i) Where departmental proceedings have been initiated or are contemplated and the disciplinary authority is of the view that the case may result in the imposition of penalty of removal or dismissal; or (ii) Where, prosecution is either contemplated or has actually been launched against the employee concerned. " In para. VIII. b)it was mentioned, "the Voluntary Retirement of the employee under this Scheme would be subject to Vigilance clearance. " ( 2 ) THE petitioner submitted his application on July 6, 2004, that is, within the period stipulated in the scheme. His application was rejected on November 3, 2004. He submitted an application dated November 28, 2004 seeking review of the decision. Treating that application as a fresh application, the competent authority rejected that on December 14, 2004. One Monotosh Roy, another officer of the corporation, also applied for voluntary retirement in terms of provisions of the scheme. His application was also rejected on November 3, 2004. Curiously he applied for review of the decision by submitting an application dated october 14, 2004. By order dated November 29, 2004 his review application was allowed, and he was granted voluntary retirement. The case of Monotosh has an important relation to the petitioner's case, and that is this. Both of them with five other officers and employees of the corporation were proceeded against. Seven charge-sheets all dated april 18, 2001 had been issued against them; a joint inquiry was conducted by the duly appointed inquiry officer. They all participated in the inquiry. The case of Monotosh has an important relation to the petitioner's case, and that is this. Both of them with five other officers and employees of the corporation were proceeded against. Seven charge-sheets all dated april 18, 2001 had been issued against them; a joint inquiry was conducted by the duly appointed inquiry officer. They all participated in the inquiry. The inquiry officer submitted his report on April 28, 2004. He recorded the findings that charges levelled against the petitioner had not been established. He, however, recorded that charges levelled against Monotosh had been proved. ( 3 ) THE disciplinary authority issued a notice dated April 30, 2004 calling upon the petitioner to submit his comments on the findings recorded by the inquiry officer. He did not disagree with the inquiry officer, and he did not either propose to impose any punishment. On receipt of the notice the petitioner submitted his reply dated June 1, 2004. The final decision exonerating him was, however, given by the disciplinary authority only on January 25, 2005. In the case of manotosh, however, the disciplinary authority agreed with the inquiry officer and imposed punishment. Since application submitted by the petitioner was rejected, and since the authorities did not respond to his legal notice demanding justice, he took out this writ petition. In his legal notice he specifically stated that his application seeking voluntary retirement had been rejected without assigning any reason. He also requested the authorities to accept his application with effect from the date he was entitled to go on voluntary retirement in terms of provisions of the scheme. The respondents are contesting the case. They have filed an opposition. In the opposition for the first time they have stated that the petitioner's application was rejected in terms of provisions in paras. IV. 3 (ii) and VIII. (b) of the scheme. ( 4 ) IT is their case that since vigilance clearance had not been given, the application was rejected. Their further case is that the petitioner suppressed the fact of initiation and pendency of the disciplinary proceedings against him. Counsel for the petitioner has contended that by sheer inaction the authority caused a grave prejudice to the petitioner, when he had the right to be treated fairly in the matter. He says that right to get a fair treatment, as is known, is a fundamental right. Counsel for the petitioner has contended that by sheer inaction the authority caused a grave prejudice to the petitioner, when he had the right to be treated fairly in the matter. He says that right to get a fair treatment, as is known, is a fundamental right. According to him by not giving final decision in the disciplinary proceedings immediately after April 30, 2004, and then by rejecting the application for voluntary retirement on the ground of pendency of disciplinary proceedings, the corporation acted unreasonably and unfairly. He says that the discretion conferred on the authority concerned by the relevant provisions of the scheme was to be exercised judiciously, not in an unfettered and unbridled manner. He points out that till before filing of the opposition the respondents had never disclosed or communicated to the petitioner the reasons for rejection. He says that even after service of legal notice the authorities never cared to disclose the reasons for rejecting the application. ( 5 ) HIS further submission is that the authority rejected the application on the basis of a totally perverse and wrong reading of the relevant provisions of the scheme. He says that according to provisions of the scheme it was not to remain valid for three months as contended by the respondents. He says that the application could be rejected only on the specific grounds mentioned in the provisions of the scheme. He points out that in the opposition the person affirming it took a different stand that the application was to be rejected on the grounds mentioned in the relevant paragraph. Counsel for the respondents submits that the writ petition should be dismissed on the sole ground of suppression of material facts in that the petitioner, knowing fully well that his application seeking voluntary retirement had been rejected twice on the ground of pendency of the disciplinary proceedings, did not say anything in the writ petition about that. Her further contention is that in terms of provisions of the scheme the corporation possessed an absolute right to reject the application, and that the decision is not justiciable. She says that the petitioner was aware of the procedure mentioned in para VIII of the scheme that his application was bound to be rejected unless vigilance clearance was available. Her further contention is that in terms of provisions of the scheme the corporation possessed an absolute right to reject the application, and that the decision is not justiciable. She says that the petitioner was aware of the procedure mentioned in para VIII of the scheme that his application was bound to be rejected unless vigilance clearance was available. ( 6 ) IT seems to me that the authority concerned did not act in the matter according to the rule of fairness and reasonableness, and the provisions of the scheme. Pendency of the departmental proceedings initiated against the petitioner was not a bar to his filing an application seeking voluntary retirement in terms of the scheme. Under provisions of the scheme, para IV. 3 (i), the authority could deny voluntary retirement to him only if the disciplinary authority was of the view that there was a possibility of imposition of penalty of removal or dismissal in the pending departmental proceedings. Simply because the proceedings remained pending, the authority was not competent to say that the petitioner should not be granted voluntary retirement. Counsel for the petitioner has rightly submitted that the disciplinary authority was under the obligation to give final decision in the proceedings immediately after April 28, 2004 when the inquiry officer submitted report recording his findings that charges levelled against the petitioner had not been proved. As is apparent from notice of the disciplinary authority dated April 30, 2004 he did not differ with the findings recorded by the inquiry officer. ( 7 ) HE never proposed to impose any punishment, and the final order was passed only on January 25, 2005 exonerating the petitioner; and during the period from April 28, 2004 to January 25, 2005 the matter connected with voluntary retirement had been rejected on the ground of pendency of departmental proceedings. I have absolutely no hesitation in holding that the authorities acted in the matter in a most injudicious, unfair, and unreasonable manner. The scheme was notified on June 29, 2004 asking the authority to take the requisite view on an application for voluntary retirement in a reasonable and judicious manner. At that date and thereafter there was absolutely no material before the disciplinary authority or before any other authority to hold that in the pending disciplinary proceedings there was a possibility of imposition of a penalty of removal or dismissal on the petitioner. At that date and thereafter there was absolutely no material before the disciplinary authority or before any other authority to hold that in the pending disciplinary proceedings there was a possibility of imposition of a penalty of removal or dismissal on the petitioner. By that date the disciplinary authority had already issued the notice dated April 30, 2004 which was, as rightly said by counsel for the petitioner, nothing but an empty formality. That, however, made it clear that the disciplinary authority did not decide to impose any penalty on the petitioner, since he did not differ with the findings of the inquiry officer. This position took real shape when the final order was made by the disciplinary authority exonerating the petitioner. ( 8 ) THERE is absolutely no reason to say that for absence of vigilance clearance the authority concerned was not in a position to allow the petitioner's application for voluntary retirement. It was to be allowed subject to the vigilance clearance. It is not the case of the respondents that besides the disciplinary proceedings that ultimately ended in the petitioner's exoneration any other case or proceedings were pending before, any authority including the vigilance. It is not comprehensible how the deponent of the affidavit in opposition said that the application had been rejected in terms of provisions in para. IV. 3. (ii) of the scheme. It is not the case of the respondents that any prosecution had either been launched or was in contemplation against the petitioner. It seems to me that the respondents never seriously applied their mind to the matter, far less to speak of taking a reasonable and judicious view. His review application dated November 28, 2004 was rejected treating it as a fresh application. It is not the case of the respondents that, though there was no provision in the scheme, review of a previous decision was not permissible. In case of Monotosh the authority reviewed the decision dated November 3, 2004. His application was also rejected on the ground of pendency of disciplinary proceedings. ( 9 ) IT is not known how Monotosh could apply for review of that decision by submitting an application dated October 14, 2004. But then, it is apparent from the decision of the authority dated November 29, 2004 that his review application dated October 14, 2004 was considered and allowed. ( 9 ) IT is not known how Monotosh could apply for review of that decision by submitting an application dated October 14, 2004. But then, it is apparent from the decision of the authority dated November 29, 2004 that his review application dated October 14, 2004 was considered and allowed. This situation is sufficient to bare the unfair manner in which the authority considered the petitioner's applications. It is not known why the same standard and principle as was applied to monotosh's case was not applied to the petitioner's case. To my mind, the authorities did not treat the petitioner fairly. Decision in his case, it seems to me, was taken mechanically and without proper application of mind. I must say that his application was fit to be allowed. I do not find any merit in the contention of counsel for the respondents that on the ground of suppression of material fact the writ petition should be dismissed. I do not see any reason to agree with her that the petitioner had full knowledge of the reasons for which his application had been rejected twice. The admitted position is that the reasons, which the authority was required to record in writing, were never disclosed or communicated to the petitioner in any manner whatsoever, and that too even after the legal notice was served by him. I do not see how the respondents can impute suppression of the reasons to the petitioner. ( 10 ) I am unable to appreciate the stand taken by the respondents who not only misapplied the provisions of the scheme to the petitioner's detriment, but are also guilty of unfair inaction. I must say that they are not entitled to take advantage of their own wrong and inaction. I do not see how the respondents could take the plea that life of the scheme expired long ago. Nothing was mentioned in the scheme to say that it would remain alive for a limited period. What was said is that it would remain in operation for certain period, and I agree with counsel for the petitioner that the period of operation was to mean the period within which the intending applicants were to submit their applications. It is apparent that applications submitted within the period were considered by the authorities long after expiration of the period of three months mentioned in para 1. 3. It is apparent that applications submitted within the period were considered by the authorities long after expiration of the period of three months mentioned in para 1. 3. Even if it is assumed that the scheme was to remain alive for a specified period, I do not see how the respondents can take the plea that no relief can be given to the petitioner. Admittedly he submitted his application within the stipulated time. The respondents cannot say that he is not entitled to any relief even though their decisions rejecting his application cannot be sustained in law. This is an absurd proposition, and contention based on this, in my view, is liable to be summarily rejected. ( 11 ) THE moment it is found that the decisions rejecting the application are bad, the petitioner is to be given appropriate relief by the Court, and I have no doubt in my mind that he is entitled to relief. I have been given a Division Bench decision of the Allahabad High court in Tribhuwan Nath Srivastava v. C and MD, Indian Overseas Bank and ors. , 2004-II-LLJ 119. By refering me to paras. 52 onwards of the report, counsel has invited me to make an order directing the respondents to accept the petitioner's application for voluntary retirement. In that case, finding that the employee was entitled to get voluntary retirement in terms of the scheme, instead of remitting the matter for a fresh decision, the Court directed the authority to accept the application. I am minded to follow the authority. In my view, when no further fact finding inquiry is needed, and when the only ground of rejection was not a valid ground to reject the application, there is no need to remit the matter to the authority for giving a fresh decision. There must exist some reason for remitting a matter for a fresh decision; it is not to be done for uninformed reasons. The absolute power proposition, as argued, is totally wrong; for the very concept of it offends the constitution. I think this is a fit case where I should direct the authority to accept the petitioner's application seeking voluntary retirement. The absolute power proposition, as argued, is totally wrong; for the very concept of it offends the constitution. I think this is a fit case where I should direct the authority to accept the petitioner's application seeking voluntary retirement. ( 12 ) FOR these reasons, I allow the writ petition and order that the petitioner's application seeking voluntary retirement shall be accepted by the respondents with effect from November 3, 2004 when it was rejected on invalid ground. All benefits available in law shall be given to him after adjusting the benefits he received, having remained in service because of the wrong decisions, which shall be deemed to be set aside. The benefits shall be calculated according to provisions of the scheme and other relevant provisions of law, and they shall be paid within a fortnight from the date of communication of this order. There shall be no order for costs in the case. Writ petition allowed. .