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2013 DIGILAW 2263 (DEL)

Harish Kumar Sharma v. Food Corporation of India

2013-11-22

VALMIKI J.MEHTA

body2013
JUDGMENT : Valmiki J. Mehta, J. 1. This writ petition impugns the order dated 5/10.4.2013 dismissing the second representation of the petitioner for reconsideration of his pre-mature retirement vide order dated 14.2.2006. 2. The impugned order dated 5/10.4.2013 notes two important points. First is that there is no provision for second representation/review in case of pre-mature retirement. Second is that there are as many as 22 charges against the petitioner (12 major and 10 minor) and which talk of grave fraud and huge loss to the respondent no.1 on account of petitioner wrongly purchasing food grains which were not as per standards. 3. Since the order dated 5/10.4.2013 is a short order, I would like to reproduce the same and which reads as under:- “ORDER Whereas Sh. Harish Kumar Sharma, ex-TA-I was prematurely retired from the services of the Corporation under Regulation 22(2) of FCI (Staff) Regulations, 1971 vide order dated 14.02.2006 by GM, Punjab. Whereas against the said order, petitioner submitted a representation dated 01.03.2006 to the Executive Director (North). The representation of the petitioner was placed before the Review Committee duly constituted under the Chairmanship of Executive Director (North) in accordance with the instructions on the subject. Whereas after considering the relevant facts of the case, the Committee rejected the representation of Sh. Harish Sharma. Aggrieved petitioner filed WP(C) 6380/2012 in the High Court of Delhi. It was directed by the Hon’ble Court to respondent No.2 i.e. Chairman & Managing Director, FCI vide order dated 08.10.2012 to decide the petitioner dated 09.01.2007. Whereas the petition dated 09.01.2007 has been examined and it is observed that the petitioner has been prematurely retired under Regulation 22(2) of FCI (Staff) Regulations as per the GOI and FCI instructions, there is no provision for consideration of second representation/review in case of premature retirement under Regulation 22(2) of FCI (Staff) Regulations. However, on examining the case, it emerges that the competent authority i.e. GM, Punjab while passing order dated 14.02.2006 for premature retirement of Sh. Harish Kumar Sharma under regulation 22(2) also directed that the pending proceedings under major and minor penalty cases in respect of which charge sheets have already been issued to him, shall continue for recovery of the losses. It also appears from the order dated 14.02.2006 that gratuity of Sh. Harish Kumar Sharma has also been forfeited. Harish Kumar Sharma under regulation 22(2) also directed that the pending proceedings under major and minor penalty cases in respect of which charge sheets have already been issued to him, shall continue for recovery of the losses. It also appears from the order dated 14.02.2006 that gratuity of Sh. Harish Kumar Sharma has also been forfeited. Whereas, there was no provision in the Staff Regulation for continuation of disciplinary proceedings after retirement, Regulation 60(A) which provides for disciplinary proceedings after the retirement of the employee was incorporated in the FCI (Staff) Regulations vide Notification No.97 dated 15.05.2007. WHEREAS, it is also evidence that the official has been prematurely retired from the services of the Corporation after considering the instructions on the subject and after following the due procedure. The screening committee has considered all the aspects and observed that the official belongs to Quality control cadre and the incumbents operating this cadre have a pivot role to play in procuring the food grains meant for human consumption under public distribution system by the poor consumers. The Government of India incurs huge expenditure to make the food grains available to the consumer in the deficit states in every corner of the country. By virtue of the post which the official has been holding, his basic duty was to accept the food grain strictly confirming to the laid down specifications preserve it properly in the godowns till its dispatch to the deficit states. But perusal of his past record and performance indicates that he repeatedly indulged into malpractices and utterly failed to discharge his assigned duties in as much as he played a havoc with the precious food grains by way of acceptance/dispatch of stocks not confirming to the specifications with malafide intentions, thereby causing colossal loss to the corporation for which he has been charge sheeted in 12 major, 10 minor penalty cases i.e. total 22 cases, out of which he has been imposed penalties in 3 cases. 10 major and 9 minor penalty cases were still pending against him at the time of premature retirement. Despite imposition of penalties and affording adequate opportunities, he has not improved his performance/conduct. By doing so, he has tarnished the image of the Corporation in the eyes of the public and brought disrepute to the organization. Therefore, continuation of petitioner would be detrimental to the interest of the Corporation. Despite imposition of penalties and affording adequate opportunities, he has not improved his performance/conduct. By doing so, he has tarnished the image of the Corporation in the eyes of the public and brought disrepute to the organization. Therefore, continuation of petitioner would be detrimental to the interest of the Corporation. Whereas, it emerges from record that the decision of premature retirement of Sh. Harish Kumar Sharma does not suffer from any infirmity. However, after the said premature retirement order dated 14.02.2006, the employer-employee relationship got severed and as a result any penal action taken on the charge sheet thereafter is legally not sustainable. Therefore, any penalty imposed on the petitioner including forfeiture of gratuity after the date of order of premature retirement i.e. 14.02.2006 is non-est in law and is hereby declared null and void. Sd/- (DR. AMAR SINGH) Chairman and Managing Director” 4. Powers under Article 226 of the Constitution of India are extraordinary powers. The object of exercise of powers is to do justice. In a case like the present where there are allegations of huge loss to the respondent no.1/FCI and as many as 22 cases have been chargesheeted against the petitioner order of premature retirement of the petitioner passed on 14.2.2006 cannot in any manner be held to be illegal or malafide. I may also note that because the impugned order notes that there is no provision for review/second representation and therefore this writ petition filed in the year 2013 really challenging the order passed way back in February, 2006 is misconceived. Review petition is barred by delay and laches because challenge really is laid to the original order passed on 14.2.2006, and in the year 2013 that order cannot be challenged. 5. I may note that I put it to the counsel for the petitioner to show me any averment in the writ petition that rules/regulations of respondent no.1 provide for a second representation/review however counsel for the petitioner has failed to point out any such pleadings. In any case, I do not think that in the present case there can be successful challenge to the premature retirement inasmuch as 22 charges against the petitioner were issued and as detailed in the impugned order. 6. In any case, I do not think that in the present case there can be successful challenge to the premature retirement inasmuch as 22 charges against the petitioner were issued and as detailed in the impugned order. 6. I may however clarify that I have not observed one way or the other on the merits of the chargesheet and disciplinary proceedings will be decided uninfluenced by the observations made in the present judgment. 7. Writ petition is accordingly dismissed, leaving the parties to bear their own costs.