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2007 DIGILAW 252 (GAU)

Bipin Rajbongshi v. Union of India

2007-03-28

RANJAN GOGOI

body2007
JUDGMENT Ranjan Gogoi, J. 1. An order dated 18/29.5.2002 imposing the penalty of recovery of a sum of Rs. 1,50,000 from the monthly salary of the petitioner has been assailed in this writ petition. 2. The brief facts may be noticed at this stage. At the relevant point of time the petitioner was holding the post of Assistant Grade-II and he was posted in Shed No. 3/4 of the Food Storage Depot of the Food Corporation of India in Beltola within the City of Guwahati. By a memorandum dated 6.9.2001 the petitioner was informed that his disciplinary authority was proposing to take action against him under regulation 60 of the Food Corporation of India (Staff Regulations), 1971 (the Regulations) on account of certain omissions and commissions, details of which were appended to the aforesaid memorandum dated 6.9.2001. The petitioner was given an opportunity to submit a representation against the action that was proposed to be taken. The essence of the charge against the petitioner is one of negligence of duty leading to shortage of URS rice beyond the permissible percentage of loss resulting in pecuniary loss to the Corporation. 3. On receipt of the aforesaid memorandum dated 6.9.2001 the petitioner submitted his reply on 20.9.2001. In the said reply the petitioner contended that the Depot in which he was working was under the control of the Depot In-charge and the petitioner merely functioned under the direct control and guidance of the Depot In-charge. In the reply submitted, the petitioner had further contended that, from time to time, the authorities of the Food Corporation of India were informed of the necessity of ensuring supply of quality control equipments and medicine to avoid deterioration of stocks which requests wont unheeded. Consequently, the food grains in question got damaged infected resulting in high percentage of loss or which the petitioner was in no way responsible. In the aforesaid facts, the petitioner submitted that he should be exonerated of the charge leveled by the memorandum dated 6.9.2001. 4. Thereafter, the disciplinary authority of the petitioner by the impugned order dated 18/29.5.2002 recorded the view that on consideration of the reply of the petitioner, the grounds urged were found to be wholly unacceptable and the loss/shortage in the quantity of food grains to be abnormal and unacceptable. Consequently the disciplinary authority of the petitioner recorded the conclusion that penalty of recovery of Rs. Consequently the disciplinary authority of the petitioner recorded the conclusion that penalty of recovery of Rs. 1,50,000 should be imposed on the petitioner. The amount was to be recovered in 30 equal monthly installments and if required from the terminal benefits of the petitioner. Aggrieved by the aforesaid order dated 18/29.5.2002 this writ petition has been filed. 5. At the outset, it must be noticed that the penalty of recovery imposed on the petitioner falls within the four species of minor penalty enumerated by regulation 54 of the Regulations in force. While regulation 58 of the said Regulations prescribe an elaborate procedure for imposing a major penalty which has to be preceded by a detailed enquiry in the minor set out in regulations 58 and 59, in so far as minor penalties are concerned, a reading of the provisions contained in regulation 60 would seem to indicate that a minor penalty need not be preceded by an enquiry in accordance with the procedure prescribed by regulations 58 and 59. As in the instant case the penalty imposed on the petitioner was not preceded by any enquiry being a minor penalty, arguments have been advanced on the true meaning and purport of regulation 60 of the Regulations in force. It will, therefore, be convenient and necessary for the court to extract herein below the provisions contained in regulation 60 of the Staff Regulations: 60. Procedure for imposing minor penalties: (1) Subject to the provisions of Sub-regulation (3) of regulation 59, no older 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 in writing of the proposal to take action against him and of the imputation 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-regulation (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. (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 case it is proposed, after considering the representation, if any, made by the employee under Clause (a) of Hie 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 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 misbehavior delivered to him. (iii) His representation, if any. (iv) The evidence produced during tile inquiry. (v) The findings on each imputation of misconduct or misbehavior. (vi) The orders on the case together with the reasons therefor. 6. A reading of the provisions contained in regulation 60, as extracted herein above, makes it abundantly clear that before imposing a minor penalty, as enumerated by regulation 54, the affected employee is required to be furnished with the imputation of misconduct or misbehavior on the basis of which the action is proposed to be taken. The affected employee is also required to be given a reasonable opportunity of making a representation against the action proposed. Thereafter, under regulation 60(1)(b) only incases where the disciplinary authority is of the view that an enquiry is necessary, the holding of such an enquiry is mandatory. In other words, if the disciplinary authority is of the view that in the given facts of the case an enquiry is to be dispensed with it is open for the disciplinary authority to order for such dispensation and proceed to take action in accordance with Sub-clauses (c) and (d) of regulation 60(1) without holding any enquiry. In other words, if the disciplinary authority is of the view that in the given facts of the case an enquiry is to be dispensed with it is open for the disciplinary authority to order for such dispensation and proceed to take action in accordance with Sub-clauses (c) and (d) of regulation 60(1) without holding any enquiry. Admittedly, in the present case, the petitioner was informed of the imputation of misconduct on the basis of which action was proposed to be taken and he was given an opportunity to submit his representation against such proposed action. The said opportunity was availed of by the petitioner. Thereafter, by dispensing with an enquiry, the punishment of recovery, as noticed above, has been imposed giving rise to the grievances expressed in the present writ application. 7. Mrs. B. Dutta, learned Counsel for the petitioner, in the course of her argument has submitted that neither in the order dated 18/29.5.2002 imposing the penalty of recovery nor in the affidavit filed by the respondents there is any indication as to why the explanations offered by the petitioner in his reply dated 20.9.2001 were found to be unacceptable. Neither is there any explanation forthcoming on the part of the respondents as to why the disciplinary authority had, in the present case, taken the decision not to hold any enquiry against the petitioner before imposing the penalty in question. Mrs. Dutta has vehemently contended that the power not to hold an enquiry as conferred by regulation 60(1)(b) is hedged by the requirement of fairness and transparency which would require the disciplinary authority to reach the conclusion that no enquiry is necessary in an honest, fair and bona fide manner. As no such reasons had been forthcoming, according to Mrs. Dutta, the said decision is arbitrary and, therefore, open to interference. In support Mrs. Dutta, learned Counsel for the petitioner, has relied on the observations of the Apex Court contained in paragraph 5 of the judgment in the case of Food Corporation of India, Hyderabad and other vs. A. Prahalada Rao and another, (2001) 1 SCC 165 . 8. Dutta, the said decision is arbitrary and, therefore, open to interference. In support Mrs. Dutta, learned Counsel for the petitioner, has relied on the observations of the Apex Court contained in paragraph 5 of the judgment in the case of Food Corporation of India, Hyderabad and other vs. A. Prahalada Rao and another, (2001) 1 SCC 165 . 8. Controverting the submissions advanced on behalf of the petitioner, Sri C. Choudhury, learned Counsel for the respondents, has submitted that under the provisions of regulation 60 of the Staff Regulations, imposition of a minor penalty is required to be preceded by communication of the charge (s) to the charged official and by giving an opportunity to him to submit a representation against the action proposed. This has been done in the present case. Sri Choudhury has emphatically urged that under the provisions of regulation 60(1)(b) power has been vested in the disciplinary authority to dispense with an enquiry and only in such cases where enquiry is considered to be necessary that the same must be held. In all other cases, according to Sri Choudhury, the enquiry can be dispensed with. In the present case, according to Sri Choudhury, a mere reading of the impugned order dated 18/29,5.2002 would go to show that the reply of the petitioner was duly considered by the disciplinary authority who had, thereafter, taken the decision that the said reply is not satisfactory and that no enquiry need be held in the present case. The power exercised being permissible in view of the clear and expressed provisions of the Regulations, according to Sri Choudhury, the impugned order dated 18/29.5.2002 does not disclose any such apparent error which needs to be corrected in the exercise of the jurisdiction vested in this Court under Article 226 of the Constitution. 9. The rival submissions advanced on behalf of the parties have received the due and anxious consideration of the court. Every decision or conclusion of the human mind has to be necessarily based on reasons. The law does not countenance a situation; neither can one be visualised where a decision taken or a conclusion reached is without any reasons in support thereof. Reasons in support of a decision serve two-fold purpose. Every decision or conclusion of the human mind has to be necessarily based on reasons. The law does not countenance a situation; neither can one be visualised where a decision taken or a conclusion reached is without any reasons in support thereof. Reasons in support of a decision serve two-fold purpose. Transparency in the exercise of power is the first; the other is that reasons indicate the manner in which the mind has been applied facilitating post-decisional determinations of the validity of the exercise. However, keeping in mind the enormity, of the tasks confronting the modern day administrator, the law has struck a compromise by holding and reiterating, from time to time, that an administrator exercising purely administrative powers need not expressly record his reasons for the decision taken or the conclusion reached. However, the aforesaid view taken by the courts should not be construed as a licence for the administrator to complete/conclude the decision making process without having good and valid reasons to justify the decision taken. What the said view of the court means and signifies is that the administrator need not record or spell out the detailed reasons for the decision taken or a conclusion reached and no further. If, however, the decision gets challenged in a court of law, the administrator will always be duty bound to satisfy the court, though reasons may not have been recorded, that there were, indeed, good and sufficient reasons for the view taken. Such justification could be by means of the nothings in the file or even by a reference to the reasonableness of the decision in the context of the surrounding facts and circumstances of the case. 10. In the present case, in the impugned order dated 18/29.5.2002 the disciplinary authority of the petitioner has recorded that the explanations submitted by the petitioner in his reply dated 20.9.2001 were found to be unacceptable. While it is correct that in the aforesaid order itself the disciplinary authority was not required to record the detailed reasons for the view taken yet in a situation where the matter has come under judicial scrutiny the said authority is duty-bound to satisfy the court that there were good reasons for the view taken. No such reasons are forthcoming. While it is correct that in the aforesaid order itself the disciplinary authority was not required to record the detailed reasons for the view taken yet in a situation where the matter has come under judicial scrutiny the said authority is duty-bound to satisfy the court that there were good reasons for the view taken. No such reasons are forthcoming. Neither in the affidavit filed nor from the records in original placed before the court it has been demonstrated, to the satisfaction of the court, that the disciplinary authority of the petitioner had proceeded on any acceptable basis to take the view that an enquiry is not necessary. In this regard the views of the Apex Court in Food Corporation of India, Hyderabad and other, (supra) may be usefully noticed. 11. In Food Corporation of India, Hyderabad and other, (supra), the High Court had initially taken the view that where the charge is denied by the affected employee, notwithstanding the provisions contained in regulation 60(1)(b), it is incumbent for the disciplinary authority to hold an enquiry before imposing even a minor penalty. In the appeal before the Apex Court, at the instance of the Food Corporation of India, the Apex Court disagreed with the view taken by the High Court by holding that in the teeth of the provisions contained in the Regulations no such requirement of holding an enquiry, merely because the charge is being denied, could have been understood to be necessary. How-ever, the Apex Court also took the view that whether a departmental enquiry should be held or not being a discretionary power it has to be exercised by considering the facts of each case and if such power has been misused or used arbitrarily it would be amenable to judicial review under article226 of the Constitution. A discretionary power, vested by the Statute, naturally, has to be exercised according to the rules of reasons and justice, not according to private opinion, according to law and not humour. It is to be, not arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself as observed in Susannah Sharp vs. Wakefield, (1891) ACC 173. 12. It is to be, not arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself as observed in Susannah Sharp vs. Wakefield, (1891) ACC 173. 12. In the present case the charge against the petitioner is that on account of his negligence wastage of food grains had occurred beyond the permissible percentage. The petitioner, in his reply, denied the charge and contended that such wastage had occurred due to the failure of the Corporation to provide necessary quality control equipments and medicine though the same were sought for by the petitioner and other employees from time to time. In this regard, the petitioner has brought on record copies of several correspondences exchanged by him with the superior authorities wherein requests for quality control equipments and medicine was made and reiterated. Not only that, in the affidavit filed by the respondents, it has been stated that the loss/damage that had occurred was because the petitioner did not follow the principle of first in first out and as the petitioner had indulged in simultaneous issue of food grains from the same stock received by him. The aforesaid case; it must be noticed, had been set up by the respondents for the first time in the affidavit filed in the present case. In any case the justification advanced could have only been established in a full fledged departmental enquiry against the petitioner wherein the petitioner would also have had all opportunities to establish the case stated by him in his reply. The court will, therefore, understand that there was a requirement for the disciplinary authority to hold an enquiry and if according to the disciplinary authority no such inquiry was required to be held, at least, to mention the reasons why the said view is being taken so as to enable the court to judge the correctness of the view taken. In the absence of an enquiry or even the reasons for not holding such an enquiry the decision of the disciplinary authority to impose the punishment has to be understood to be an arbitrary decision which has no room for acceptance in a system governed by laws. 13. For all the aforesaid reasons, I am of the view that this writ petition ought to be allowed which I hereby do. 13. For all the aforesaid reasons, I am of the view that this writ petition ought to be allowed which I hereby do. The impugned order dated 18/29.5.2002 is hereby set aside with liberty to the respondents to proceed against the petitioner by holding an enquiry, if so advised. Consequently and in the light of the foregoing discussions this writ petition is allowed as indicated above. Petition allowed.