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2007 DIGILAW 447 (CAL)

PANKAJ KUMAR SARKAR v. FOOD CORPORATION OF INDIA

2007-06-21

TAPEN SEN

body2007
( 1 ) THE petitioner has prayed for quashing the charge-sheet dated 16. 6. 2006 (as contained in Annexure-P7) as well as the final order of punishment dated 22. 8. 2006 (as contained in Annexure-P9) whereby and whereunder, the Managing Director, (respondent No. 2) came to the conclusion that the reply of the petitioner was not convincing and therefore, in exercise of his powers conferred under Regulation 56 of the FCI (Staff)Regulations, 1971, imposed the penalty of reduction by two stages in the time scale of pay for a period of 3 (three) years without cumulative effect. ( 2 ) THE petitioner has also prayed for a direction upon the respondents to consider his case for promotion to the post of General manager (General) in the ensuing departmental promotion committee and to take all steps in furtherance thereto on the assumption that no such departmental proceeding had been initiated or order of punishment imposed. ( 3 ) MR. Surajit Samanta, learned Counsel appearing for the petitioner has submitted that for a charge-sheet issued under the provisions of regulation 60 of FCI (Staff) Regulations, 1971, the respondents could not have punished him by reduction by 2 (two) stages in the time scale of pay for a period of 3 (three) years without cumulative effect because such a punishment amounts to a major penalty under the provisions of Regulation 54 (v) of the Discipline and Appeal Regulations included under Section 5 of the FCI (Staff) Regulations, 1971 (hereinafter referred for the sake of brevity and precision as the said Regulations ). He has further submitted that in any event, for an allegation of having made a mere "recommendation", he could not have been proceeded against and punished by the imposition of a major penalty and that too, when a mere "recommendation" can never amount a misconduct under the said regulations. ( 4 ) IT is not necessary to deal with the details of the service history of the petitioner as they have no proximate relevance to the subject-matter under adjudication and therefore, it would only be sufficient to notice that while the petitioner was working in the capacity of the Deputy General manager (General), West Bengal, the impugned charge-sheet came to be issued against him on 16. 6. 2006 vide Annexure-P7 purporting to be under the provisions of Regulation 60 of the said regulations. 6. 2006 vide Annexure-P7 purporting to be under the provisions of Regulation 60 of the said regulations. By reason of the said charge-sheet, the petitioner was directed to file his representation within 10 days failing which it was indicated, that it would be presumed that he had no representation to make and thereafter, order would be passed ex-pane. ( 5 ) THE aforementioned charge-sheet was received by the petitioner on 23. 6. 2006 whereafter the petitioner filed his reply on 28. 6. 2006 vide annexure-P8. Thereafter, on 22. 8. 2006 the Managing Director of the corporation (respondent No. 2) passed the impugned order of punishment whereby and where under, in exercise of his powers conferred under regulation 56 of the said regulations, the penalty of reduction by two stages in the time scale of pay for a period of three years without cumulative effect was imposed upon the petitioner. ( 6 ) LEARNED Counsel for the petitioner has submitted that the charge-sheet as contained in Annexure-P7 was issued under the provisions of regulation 60 of the said regulations which is the procedure laid down for imposing minor penalties but in the case of the petitioner, the punishment that has been imposed, is a major penalty. For imposing major penalty, the respondents have to follow the procedure prescribed under Regulation 58 and not Regulation 60. ( 7 ) AN Affidavit-in-Opposition has been filed by the respondents wherein they have taken a stand in Paragraph-4 that actually, the penalty that has been imposed upon the petitioner, is a minor penalty prescribed under the heading 'minor penalties' in Regulation 54 of the Staff regulations. They have brought on record a Notification being Gazette notification No. 84 published on 25. 8. 2000 in support of their contention that in exercise of the powers conferred under Section 45 of the Food corporations Act, 1964 and with the previous sanction of the Central government, the FCI (Staff) Regulations, 1971 were amended w. e. f. the date of such publication (i. e. 25. 8. 8. 2000 in support of their contention that in exercise of the powers conferred under Section 45 of the Food corporations Act, 1964 and with the previous sanction of the Central government, the FCI (Staff) Regulations, 1971 were amended w. e. f. the date of such publication (i. e. 25. 8. 2000) whereby and whereunder, while naming the amendment as the FCI (Staff) (2nd amendment of) Regulations, 2000, a new clause after Regulation 54 (iii) and before 54 (iv) was, inserted providing therein that a minor penalty would include reduction to a lower stage in the time scale of pay for a period not exceeding three years without cumulative effect and which did not adversely affect pension. ( 8 ) THE aforementioned Gazette Notification referred to above has been marked Annexure-R1 appended to the Affidavit-in-Opposition and therefore, the said Regulation 54 (as it stood prior to 25. 8. 2000) and the amended regulation as it now stands on and from 25. 8. 2000 are therefore worth reproducing as follows: - "54. Penalties: notwithstanding anything contained in any other regulation, and without prejudice to such action to which an employee may become liable under any other regulation or law for the time being in force, the following penalties may (for good and sufficient reasons and as hereinafter provided) be imposed on any employee of the corporation. Minor Penalties: (i) Censure; (ii) Withholding of his promotion; (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; (iv) Withholding of increments of pay. Major Penalties: (v) reduction to a lower stage in the time-scale of pay for a specified period with further directions as to whether or not the employee of the Corporation will earn increments of pay during the period of such reduction and whether on the expiry of such period, the reduction will or will not have the effect of postponing the future increments of his pay;" Now the Amended Regulation referred to above and as it now stands w. e. f. 25. 8. 2000 reads as follows: - "food Corporation of India notification No. New Delhi, the 25th August, 2000 no. EP. 36 (1)/2000,. . . 8. 2000 reads as follows: - "food Corporation of India notification No. New Delhi, the 25th August, 2000 no. EP. 36 (1)/2000,. . . ln exercise of the powers conferred by section 45 of the Food Corporation Act, 1964 (37 of 1964) and with the previous sanction of the Central Government, the FCI hereby make the following Regulations further to amend the FCI (Staff)Regulations, 1971, namely-1. (i) These Regulations shall be called the FCI (Staff) (2nd amendment) Regulations,2000 (ii) They shall be deemed to have come into force from the date of its publication in the official gazette. 2. The sub-clause (iii) (a) should be inserted after sub-Regulation 54 (iii) and modify Regulation 54 (v) in the FCI (Staff)Regulations, 1971 so as to read as under: -Minor Penalties: (a) Insert a new clause after 54 (iii) and before 54 (iv) (iii) (a) reduction to a lower stage in the time-scale of pay for a period not exceeding 3 years, without cumulative effect and not adversely affecting his pension. Major Penalties: (b) Modify 54 (v) as follows: -54 (v) same as provided for a Regulation (iii) (a) above, reduction to a lower stage in the time-scale of pay for a specified period will further directions as to whether or not the employee of the Corporation will earn increments of pay during the period of such reduction and whether on the expiry of such period, the reduction will or will not have the effect of postponing the future increments of his pay. K. N. Singh Secy" [quoted Verbatim but emphasis added by this Court) ( 9 ) FROM the above, it is seen that not only Regulation 54 (iii) (a) was inserted but even Regulation 54 (v) was amended. ( 10 ) IN reply to the aforementioned contention of the respondents, the petitioner has stated in Paragraph-4b (a) of his Affidavit-in-Reply that although the penalty is now a minor penalty in terms of the amended regulation 54 (iii) (a) as amended by Gazette Notification dated 25th august, 2000, the said penalty is in effect a part of Regulation 54 and as such contrary to service jurisprudence and also contrary to Articles 14,16 and 21 of the Constitution. ( 11 ) PARA 4b (a) of his Affidavit-in-Reply reads as follows: - "48. ( 11 ) PARA 4b (a) of his Affidavit-in-Reply reads as follows: - "48. In reply to such contentions of the deponent of the said affidavit I deny and dispute each of them and I reply as under: (a) Though the impugned penalty is now a minor penalty in terms of the amended Regulation 54 (iii) a as amended by Gazette notification dated 25th August, 2000, the said penalty is in effect a part of Regulation 54 (v) which is a "major penalty" and the Gazette notification is, therefore, in violation of the principles as contained in Regulation 54 and as such contrary to service jurisprudence as also the provisions of Articles 14,16 and 21 of the Constitution of india and, therefore, liable to be set aside and quashed. I, however, crave leave to make further submissions in this regard at the time of hearing of the instant petition. " (Quoted Verbatim) ( 12 ) THIS Court has no hesitation in rejecting the aforementioned contention of the petitioner. Let it be recorded that nowhere in the body of the writ petition had the petitioner even hinted that there had been an amendment and that a new sub-clause had been inserted in Regulation 54. On the contrary, the petitioner has made submissions in Paragraph-10 of the writ petition specifically asserting that in terms of the discipline and appeal regulations, the penalty of reduction of two stages in the time scale of pay for three years without cumulative effect is a major penalty and not a minor penalty. In Paragraph-10 the petitioner has sought leave of this Court to rely upon the said regulations and make submissions at the time of the hearing of the instant application. Let it further be recorded that during the course of submissions the learned Counsel for the petitioner has handed over a photocopy of the relevant portions of the said regulations namely Regulation 54 to Regulation 76 but the same does not include the amended Regulations. It is a photocopy of the old regulations as they stood prior to the amendment. ( 13 ) IT is not expected that the petitioner, at the time when the charge-sheet was issued and while he was holding the post of a Deputy General manager, was not aware of the aforementioned amendment in the regulations. It is a photocopy of the old regulations as they stood prior to the amendment. ( 13 ) IT is not expected that the petitioner, at the time when the charge-sheet was issued and while he was holding the post of a Deputy General manager, was not aware of the aforementioned amendment in the regulations. It is evident (upon a plain reading of the amended regulations which have been brought on record by the respondents and which have been taken notice of in the manner as above) that the punishment which has been inflicted upon the petitioner i. e. reduction by two stages in the time scale of pay for a period of three years without cumulative effect is clearly, a punishment under Regulation 54 (iii) (a) in terms of the amended regulations. The contention of the petitioner as highlighted as Paragraph-4b (a) that the punishment is actually a major penalty under Regulation 54 (v) is totally misconceived because both under Regulation 54 (v) as it stood prior to the amendment as well as in the terms as it now stands after the amendment of 2000, provides for a major penalty of reduction to a lower stage in the time scale of pay for a specified period with further directions that the punishment imposed would also indicate as to whether he will earn increments of pay during the period of such reduction or whether, on the expiry of such period, the reduction would or would not have the effect of postponing future increments of pay. ( 14 ) THUS, the two penalties are totally different because in the instant case the petitioner has been imposed with the penalty of only reduction by two stages in the time scale of pay for three years without cumulative effect. In other words, the further directions as contemplated in Regulation 54 (v) is not included in the order of the punishment imposed upon the petitioner and therefore, it is not a major penalty as argued on behalf of the petitioner. ( 15 ) FOR the foregoing reasons this Court rejects the contention of the petitioner in relation to his arguments to the effect that a minor penalty charge-sheet having been issued under Regulation 60, the respondents have imposed a major penalty under Regulation 54 (v ). ( 15 ) FOR the foregoing reasons this Court rejects the contention of the petitioner in relation to his arguments to the effect that a minor penalty charge-sheet having been issued under Regulation 60, the respondents have imposed a major penalty under Regulation 54 (v ). ( 16 ) HAVING rejected the aforementioned contention, this Court now proceeds to deal with the other arguments of the learned Counsel for the petitioner. The learned Counsel has submitted that the statement of imputations goes to show that the only allegation against the petitioner was that the petitioner, while functioning as the Chairman of a Committee, had recommended for the enhancement of rent from Rs. 0. 60 to Rs. 1. 20 so as to cause wrongful gain to the party and consequential loss to the fci although the party had already agreed for the enhancement of rent up to Re. 1 per square feet and after such agreement of the party, there was no justification for the petitioner to propose a further increase. ( 17 ) LEARNED Counsel for the petitioner submits that the petitioner's suggestion to enhance the rent had been made following the principles of parity and that a mere recommendation can never be said to cause loss to the Corporation learned Counsel draws attention of this Court to the minutes of the meetings brought on record between running pages 62 to 70 of the writ petition. He submits that the minutes of the meetings dated 4. 2. 2005 would go to show that the petitioner had sent his recommendations to the department of finance for their comments along' with a query as to whether parity can be made and rent @ Rs. 1. 20 per square feet can be paid or not. He submits that this was a mere recommendation on the basis of the principles of parity because he, being the Chairman of the Committee, had noticed discrimination for not allowing more than Re. 0. 60 per square feet for the last 20 years and therefore, had merely suggested that the file be sent to the department of finance for their comments. The Senior Regional Manager did not agree and closed the file on 5. 2. 2005 saying that the rate cannot be doubled but finally, after further negotiations, a suggestion was made for Re. 1 per square feet. The Senior Regional Manager did not agree and closed the file on 5. 2. 2005 saying that the rate cannot be doubled but finally, after further negotiations, a suggestion was made for Re. 1 per square feet. Finally, approval was given for the enhancement of the rent from re. 0. 60 paise per square feet to Re. 1/- per square feet as the same had been agreed upon by the party themselves as will be evident from the note dated 1. 1. 2004 brought on record by the petitioner at running page 64. ( 18 ) UPON a perusal of the documents brought on record, it is evident that the petitioner was the Chairman of the Committee which was supposed to decide on the rate, to be fixed. Upon a perusal of the minutes it is evident that after detailed negotiations and after detailed deliberations, the Senior Regional Manager ultimately accepted the rent at the rate of re. 1 per square feet but did not agree to the recommendation of the petitioner which he had made @ Rs. 1. 20/- per square feet. It is thus evident that the petitioner had merely recommended for the enhancement of the rent to Rs. 1. 20/- paise which was not accepted and therefore, this Court does not understand as to how a mere recommendation made by the petitioner at the stage of negotiations and in the capacity of the Chairman of the Committee can be said to have caused loss to the FCI, because ultimately, the authorities who were senior to the petitioner, accepted the enhancement only to the extent of Re. 1/- from 0. 60 paise as this had been agreed upon the party concerned. However, for a mere recommendation, the petitioner could not have been proceeded against. This Court is therefore of the view that the entire exercise of issuing a charge-sheet and then punishing him, though by inflicting a minor penalty, was totally uncalled for. ( 19 ) THE contention of the respondents to the effect that there was no justification for making the suggestion of enhancement of Rs. 1. 20 paise per square feet when the owner of the godown had agreed to Re. 1/- per square feet is held to be totally misconceived because a mere suggestion cannot be termed as an offence or a misconduct. 1. 20 paise per square feet when the owner of the godown had agreed to Re. 1/- per square feet is held to be totally misconceived because a mere suggestion cannot be termed as an offence or a misconduct. At best it was a suggestion for everybody to consider and the petitioner cannot be blamed for making a suggestion. Such a contention of the respondents is totally misconceived. Merely, because the petitioner was the head of a Committee of four Officers does not mean that he was denuded of his privilege, in the capacity of the head of the Committee, to even make suggestions. If this is the contention of the respondents in Paragraph-7 of their Affidavit-in-Opposition then the same is held to be a ridiculous contention. ( 20 ) SINCE, this Court has held that the respondents had acted in an unfair and arbitrary manner and since the entire exercise of departmental proceedings and/or issuance of the charge-sheet and then punishing him was uncalled for, therefore, none of the judgments cited by the learned counsel for the respondents to the effect that the High Court, exercising jurisdiction under Article 226 should not interfere, can be said to be applicable in the facts and circumstances of this case. ( 21 ) FOR the foregoing reasons, this Court is not inclined to accept the arguments of the learned Counsel for the respondents that the petitioner has an alternative remedy of filing an appeal. This Court is convinced that the petitioner was unnecessarily dragged into a departmental proceeding for no fault at all and therefore, the entire exercise of finding him guilty was obviously resorted to in a totally arbitrary manner. In that view of the matter, this Court is not inclined to relegate him to the status of an appellant before the respondents who have dealt with him in such an unfair and arbitrary manner. Learned Counsel for the petitioner has made submissions with regard to the bias and/or malice of one Abdur rab, the then Senior Manager, but this Court is not inclined to entertain such pleas of malice against Abdur Rab because this Court cannot deal with those allegations as they relate to disputed questions of fact. Learned Counsel for the petitioner has made submissions with regard to the bias and/or malice of one Abdur rab, the then Senior Manager, but this Court is not inclined to entertain such pleas of malice against Abdur Rab because this Court cannot deal with those allegations as they relate to disputed questions of fact. However, since this Court has held that the respondents have acted arbitrarily and had subjected the petitioner to a totally uncalled for proceedings, this Court therefore, directs the respondents to pay costs to the petitioner which is quantified at Rs. 10,000/ -. ( 22 ) FOR the foregoing reasons this Court is of the view that the writ petition must succeed and it is accordingly allowed to do so. As a consequence, the impugned charge-sheet as well as the Order dated 16. 6. 2006 as contained in Annexure-P7 as well as the order of punishment dated 22. 8. 2006 as contained in Annexure-P9 are both set aside and quashed and writ petition is allowed, with costs as indicated above. ( 23 ) LET it be recorded that while reserving judgment on 28. 3. 2007, this Court had passed the following order in G. A. No. 657 of 2007: - "the Court: This matter has been heard at length and concluded today by the respective lawyers appearing for the parties. This Court reserves judgment. The Court is informed by the learned Counsel for the petitioner that during the pendency of this writ petition awaiting judgment, the respondents are in the process of holding a fresh DPC to which the learned Counsel for the respondents states, that he has no such instructions. However, taking into consideration the aforementioned statements and lest there be such an eventuality, in the interests of justice and in order to avoid Multiplicity of proceedings, this Court directs that the petitioner will be allowed to participate in the said dpc but his results will not be published and it will depend on the final result of the writ petition with a clear understanding that mere participation will not be construed by the petitioner to be a conferment of rights upon him to claim equities. " [quoted Verbatim] ( 24 ) NOW, in view of this judgment, parties shall act accordingly. Upon appropriate application (s) being made, urgent xeroxed certified copy of this order, may be given/issued expeditiously subject to usual terms and conditions.