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2008 DIGILAW 1946 (PNJ)

Ram Singh v. Food Corporation Of India

2008-11-20

AUGUSTINE GEORGE MASIH

body2008
Judgment Augustine George Masih, J. 1. By this order I propose to decide CWP No. 7585 of 1989 (Ram Singh vs. Food Corporation of India and others), CWP No. 11633 of 1989 (Gurmeet Singh and others vs. Food Corporation of India and others), CWP No. 14325 of 1989 (Murari Lal vs. Food Corporation of India and others), CWP No. 14326 of 1989 {Murari Lal vs. Food Corporation of India and others) and CWP No. 14327 of 1989 (Sadhu Singh vs. Food Corporation of India etc.) as common question of fact and law is involved. The facts are being taken from CWP. No. 7585 of 1989 (Ram Singh vs. Food Corporation of India and others). 2. The petitioner joined service in the Food Corporation of India (hereinafter referred to as FCI) as Assistant Grade-Ill (Depot) on 26.12.1969 by Senior Regional Manager, Punjab, Food Corporation of India-respondent No. 3. Thereafter, he was promoted to the post of Assistant Grade-ll (Depot) by the Zonal Manager (North) FCI,New Delhi-respondent No. 2 on which post he joined in May, 1971. Thereafter, the petitioner was further promoted as Assistant Grade-I (Depot) again by Zonal Manager (North)-respondent No. 2 in September, 1977. The petitioner continued to work on the said post. It would not be out of way to mention here that the petitioners in the other writ petitions had initially joined as Assistant Grade-Ill (Depot) on different dates of appointment by Senior Regional Manager, Punjab-respondent No. 3 and were promoted as Assistant Grade-ll (Depot) by orders issued by the Zonal Manager (North) FCI-respondent No. 2. All these petitioners continued as such. 3. The FCI maintains its godowns in various parts of the country and in State of Punjab also, where the foodgrains are stored and stocked. The stock from the FCI godowns are dispatched to the FCI centres from where the demand of foodgrains is received. In the month of March, 1984 one wheat special train was required to be dispatched from Sirhind in District Patiala for Sabzi Mandi, Delhi. The entire special trains were loaded on 17/18.3.1984 after completing all the formalities. As a matter of chance, during these days, five trucks of wheat were apprehended by police anticipating these to have been embezzled by the PUNSUP staff of Sirhind, who also work under the FCI and the wheat was being moved out from the PUNSUP store at Sirhind. The entire special trains were loaded on 17/18.3.1984 after completing all the formalities. As a matter of chance, during these days, five trucks of wheat were apprehended by police anticipating these to have been embezzled by the PUNSUP staff of Sirhind, who also work under the FCI and the wheat was being moved out from the PUNSUP store at Sirhind. FIR No. 72 dated 18.03.1984 was registered at Police Station, Sirhind. After investigation, the police found that the said wheat stock belongs to a trader of Sirhind and as such a cancellation report was submitted before the Court. Vide order dated 18.09.1986, the said cancellation report was accepted by the Judicial Magistrate (1st Class), Fatehgarh Sahib. 4. On the basis of the said FIR, a false report was also made to the Senior Regional Manager, Punjab-respondent No. 3 by the Unit Secretary of FCI Class- IV Employees Union, Sirhind by way of a telegram dated 17.04.1984. A preliminary enquiry was conducted by Assistant Manager (Vigilance), who submitted his report on 27.04.1984. On the basis of this preliminary enquiry, respondent No. 3 initiated a regular departmental enquiry against all the petitioners in all the five writ petitions. They were served with charge-sheet dated 06.11.1986. Deputy Manager (Inquiry) was appointed as Enquiry Officer, who conducted the said enquiry under the FCI (Staff) Regulations, 1971 (Hereinafter referred to as the Regulations), The enquiry officer came to the conclusion that none of the charges levelled against the petitioners-were established. Accordingly, he submitted his enquiry report dated 29.09.1987. 5. The Senior Regional Manager (Punjab) FCI-respondent No. 3, despite the findings given by the enquiry officer, imposed a major penalty of reversion upon the petitioners with a bar on future promotion vide his order dated 19.02.1988, copy whereof has been appended as Annexure P-11 to these petitions. 6. It is the contention of the petitioners that none of them were issued any show cause notice nor was the disagreement note or the grounds of disagreement ever put to them by respondent No. 3 to rebut the same. No opportunity of hearing, at any stage, was given to the petitioners while passing the order of punishment. 6. It is the contention of the petitioners that none of them were issued any show cause notice nor was the disagreement note or the grounds of disagreement ever put to them by respondent No. 3 to rebut the same. No opportunity of hearing, at any stage, was given to the petitioners while passing the order of punishment. The petitioners have also made submissions that even going through the findings of the enquiry officer and the records thereof would show that there was actually no reason for taking a contrary view by disagreeing with the findings given by the enquiry officer. 7. Aggrieved by this order of punishment, the petitioners preferred a statutory appeal, as provided under the Regulations, to the Zonal Manager (North) FCI- respondent No. 2. A specific plea was taken by all the petitioners that as per Regulation 56, which provides for the disciplinary authority, the competent authority to impose a major penalty would be the Zonal Manager (North) as all the petitioners were appointed to the respective ppsts, on which they were working at the relevant time, when the punishment was imposed, by the Zonal Manager (North) - respondent No. 2. The orders of punishment have been passed by the Senior Regional Manager, Punjab-respondent No. 3, who would, therefore, in the light of the Regulation 56, not be the disciplinary authority. 8. Upon notice having been issued, the respondents have filed a detailed reply. A preliminary objection has been taken by them that the petitioners have not exhausted the remedy of review under the Regulations. It is also the stand of the respondents that as per Regulation 56, the disciplinary authority is an authority, which has been specified in Appendix 2 of the Regulations, who is empowered and, therefore, may impose any of the penalties specified in Regulation 54 on any employee. Senior Regional Manager is the competent authority to impose punishment under the Regulations on Category-Ill employees, as provided in Appendix 2 of the said Regulations. The petitioners belong to Category-Ill and, therefore, the disciplinary authority is the Senior Regional Manager-respondent No. 3. Senior Regional Manager is the competent authority to impose punishment under the Regulations on Category-Ill employees, as provided in Appendix 2 of the said Regulations. The petitioners belong to Category-Ill and, therefore, the disciplinary authority is the Senior Regional Manager-respondent No. 3. It has been pointed out by the respondents that although the charges framed against the petitioners were not proved by the findings as per the enquiry officer on each charge, however, after taking an independent view of the matter and on the perusal of the complete record placed before him, the disciplinary authority came to the conclusion that the charges against the petitioners have been fully established. It is therefore, submitted that the petitioners are not entitled to any further opportunity by the disciplinary authority, even in case of disagreement, as there is no such provision envisaged in Regulation 54 of the Regulations. On these grounds, the respondents have justified the order imposing the penalty upon the petitioners. 9. I have heard the counsel for the parties and with their able assistance, gone through the pleadings of the parties. 10. As regards the preliminary objection with regard to the non-availing of the departmental remedy of review available to the petitioners under Regulation 74 is concerned, the same cannot be now termed to be an efficacious remedy for the simple reason that the writ petitions pertain assistance, gone through the pleadings of the parties to the year 1989 and it would now be totally unjustified to relegate the petitioners to the alternative relief of departmental remedy of review as it cannot be, at this stage, termed as efficacious remedy as far as the petitioners are concerned. 11. 11. Now coming to the contention of the counsel with regard to Regulation 56, its applicability, the authority competent to take action against the petitioners under this regulation etc., the regulation needs to be reproduced here, which reads as follows: "Regulation 56 : Disciplinary authority: The Board or the authority specified in Appendix 2 in this behalf or any other authority (higher than the authority specified in Appendix-2) empowered in this behalf by a general or special order of the Board, may impose any of the penalties specified in Regulation 54 on any employee: Provided that the penalties of reduction in rank, compulsory retirement, removal from service or dismissal from service specified in Clauses (v) to (ix) of Regulation 54 shall not be imposed on any employee by an authority lower than the appointing authority. EXPLANATION: Appointing Authority in relation to an employee for the purpose of this Regulation shall be as under: (i) The authority empowered to make appointments to the post/grade which the employee for the time being holds; or (II) The authority which appointed the employees to such post/grade as the case may be; whichever authority is the higher authority." 12 A perusal of the above Regulation shows that for imposing penalties under -Regulation 54, the competent authority would be the Board or the authorities specified in Appendix 2 on this behalf or any other authority higher than the authority specified in Appendix 2 empowered in this behalf by a general or special order of the Board. However, proviso to this is that the penalties of reduction in rank, compulsory retirement, removal from service or dismissal from service, as specified in Clauses (v) to (ix) of Regulation 54 shall not be imposed on any employee by an authority lower than the appointing authority. 13. Therefore, to come to a conclusion as to who is the appointing authority, explanation to the said Regulation is relevant and would be the decider with regard to the identification of the disciplinary authority. The appointing authority, as per the explanation, would be an authority empowered to make appointments to the post/ grade, which the employee, for the time being, holds or the authority, which appointed the employee to such post/grade as the ease may be: whichever authority is the higher authority. The appointing authority, as per the explanation, would be an authority empowered to make appointments to the post/ grade, which the employee, for the time being, holds or the authority, which appointed the employee to such post/grade as the ease may be: whichever authority is the higher authority. Meaning thereby that if an employee is appointed to a post/grade by a higher authority than the appointing authority as per the Regulations (which would mean as specified in Appendix 2), the disciplinary authority would be that higher authority, which had appointed the employee to such post/grade. 14. The petitioners were appointed to the post on which they were working at the time when the disciplinary proceedings were initiated against them, by the Zonal Manager (North) FCI-respondent No. 2, therefore, in the light of Regulation 56, the disciplinary authority would be the Zonal Manager (North) FCI-respondent No. 2, although as per Appendix 2, the specified authority, under this Appendix 2, was the Senior Regional Manager, Punjab-respondent No. 3. The disciplinary authority thus to impose the penalty of reduction in rank, as per the proviso to the regulation, would be the Zonal Manager (North). FCI- respondent No. 2. 15. Imposing the penalty of reduction in rank with a bar on future promotion with immediate effect, therefore, has been passed by an authority, which is not a disciplinary authority, as per Regulation 56. The order dated 19.02.1988 (Annexure P.-11), therefore, cannot be sustained as the same has not been passed by a competent authority. 16. Counsel for the respondents has relied on a judgment of this Court in the case of Bikkar Singh vs. Food Corporation of India, 2004(2) SCT 342, to contend that the Senior Regional Manager, Punjab is the competent authority to initiate and punish the employees of Category-Ill. 17. I have gone through the judgment passed by this Court. A perusal of the same would show that the proviso to Regulation 56 and the Explanation to Regulation- 56 were not brought to the knowledge of the Court, which led to the conclusion that although the petitioner was promoted to the post by Zonal Manager but since the post falls under Category-Ill and the appointing authority, according to Appendix 2, is the Senior Regional Manager, therefore, the disciplinary authority would be the Senior Regional Manager and not the Zonal Manager. In this view of the matter, the said judgment would not be applicable to the present case. 18. The other contention raised by the counsel for the petitioner is that the enquiry officer has exonerated the petitioners in his report and has given a finding that no charges levelled against the petitionners have been proved and, therefore, if the disciplinary authority was to take a contrary view, a show cause notice was required to be issued to the petitioners, wherein the reasons for not accepting the findings recorded by the enquiry officer should have been conveyed so that the petitioners could, accordingly, put forth their explanation or justification, if any, in support of their contentions. By not doing so, the petitioners have been deprived of the opportunity of audi alter am partem, denial of which renders an order illegal. The principle of natural justice is the minimum, which is required to be followed by any authority, which takes away or whose order has the effect of taking away or effecting the civil rights of a person. This right is universally accepted one and violation thereof cannot be sustained on the ground that the Regulations do not provide for such procedure to be followed. It is the contention of the counsel for the respondents that the Regulations do not provide for such a procedure and, therefore, the petitioners were not required to be supplied with the dissenting note of the disciplinary authority before an order of punishment could be passed against them. 19. This contention of the counsel for the respondents cannot be accepted for the simple reason that an order, which affects the civil rights of a person, is required to be just and fair and the same to be such, should comply with the principle of natural justice. Where an enquiry officer has gone into the evidence, which has been produced before him and after giving a thoughtful consideration thereto, has given a finding, which is in favour of the delinquent employee, the said employee is required to be apprised of the contrary view taken by the disciplinary authority. The correct appraisal/analysis and presentation of the same set of facts and circumstances may dispel any doubts about the process of reasoning of the enquiry officer. The correct appraisal/analysis and presentation of the same set of facts and circumstances may dispel any doubts about the process of reasoning of the enquiry officer. Interests of justice require that case the disciplinary authority does not accept the report of the enquiry officer exonerating an employee, it should record its provisional conclusions and issue a notice to the concerned employee asking him to show cause as to why the proposed punishment be not imposed on him. He should be given an opportunity to present his views and justifications in support of the findings, which have been recorded by the enquiry officer in his favour. It does happen that a view taken by an authority may be erroneous or based on misconception ormisreading of evidence and by giving an opportunity to an employee to put forth his submission on the dissenting note by the punishing authority, the view, as reached by the punishing authority, may change. Otherwise also, the principle of natural justice calls for and requires a person to give a chance to putforth his contentions, thus conforming to the principle of audi alteram partem. 20. In the present case, since this principle of law has been violated and the disciplinary authority has not followed the procedure, which could be termed as just and equitable, the impugned orders dated 19.02.1988(Annexures P- ll)and 19.01.1989(Annexure P-13) cannot be sustained and deserve to be quashed. 21. In the light of the above, these writ petitions are allowed. The impugned order dated 19.02.1988 passed by the Senior Regional Manager, Punjab, Food Corporation of India respondent No. 3; (AnnexureP-i1) and order dated 19.01.1989 passed by the Zonal Manager (North), Food Corporation of India- respondent No. 2 (Annexure P-13) are hereby quashed. The petitioners shall be entitled to all consequential benefts. It will, however, be open to the respondents to take necessary steps qua the petitioners, in accordance with law.