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Madhya Pradesh High Court · body

2016 DIGILAW 1070 (MP)

R. D. Meena v. Food Corporation of India

2016-11-24

VANDANA KASREKAR

body2016
ORDER 1. With consent of the parties, matter is heard finally at motion stage. 2. Petitioner has filed the present petition challenging the order dated 29/30.4.2014 issued by respondent No.2. The petitioner is a retired employee of the respondent/Food Corporation of India. He was appointed on the post of Peon in the respondent/Food Corporation of India in the year 1976. During his service tenure, he was promoted to various posts and ultimately vide order dated 8.5.2013 he was promoted to the post of Assistant General Manager. The petitioner retired w.e.f. 30.4.2014 on attaining the age of superannuation. Thereafter, the FCI Head Office vide order dated 29.4.2014 informed the petitioner that he was retired on attaining the age of superannuation w.e.f. 30.4.2014. Accordingly, the petitioner was retired and relieved from his services of the Food Corporation of India w.e.f. 30.4.2014 afternoon. On the last date of his services, the petitioner went to Seoni on tour after intimating his Official Staff by the vehicle hired by FCI and reached Seoni at about 1:30. p.m. The petitioner, thereafter inspected the FSD Units at Seoni at around 3:00 pm. The petitioner was free from the Seoni Depot work, thereafter, till 8 pm, the petitioner was busy in the work of registration of de-mortgage and got out after registry from the Registrar Office, Seoni. Thereafter, the petitioner reached back to the Jabalpur at about 9:30 p.m. and submitted Inspection Report. The petitioner, thereafter received a letter dated 7/15.5.2014 issued by the Regional Office Bhopal for initiation of Departmental Enquiry against him and thereafter vide letter dated 19.6.2014 an Enquiry Officer was appointed for conducting enquiry against the petitioner on 6.7.2014. The petitioner replied to the said charg-sheet stating that he has not received any chargesheet during his services and he was retired on 30.4.2014 afternoon. 3. Vide letter dated 5.11.2014, the respondents have replied to the said letter issued by the petitioner alleging that the petitioner has avoided receiving of the chargesheet, therefore, he was advised to present his case before the Enquiry Officer. The petitioner vide letter dated 5.11.2014 has gave replied to the said letter. Thereafter, vide letter dated 29.5.2014 issued by the respondents, the representation submitted by the petitioner has been rejected. As the respondents have not paid the amount of CPF gratuity, leave encashment to the petitioner. The petitioner, therefore, submitted a representation but no action has been taken. The petitioner vide letter dated 5.11.2014 has gave replied to the said letter. Thereafter, vide letter dated 29.5.2014 issued by the respondents, the representation submitted by the petitioner has been rejected. As the respondents have not paid the amount of CPF gratuity, leave encashment to the petitioner. The petitioner, therefore, submitted a representation but no action has been taken. Being aggrieved by the said chargesheet and the departmental enquiry, the petitioner has filed the present writ petition. 4. The respondents have filed their reply and stated that the chargesheet was issued to the petitioner under Regulation 58 of FCI (Staff) Regulation 1971 (hereinafter referred as to the Regulation). 5. On 29.4.2014 memorandum was issued to him through his official E-mail ID on 30.4.2014 at 12:04 pm as well as through registered post at the notified residential address as per service records and by speed post in the petitioner’s alternate address. It has been further stated that the Committee of three Officers of the FCI, Regional Office, Bhopal visited the petitioner’s residential address and pasted the said memorandum on the front outside wall near main gate. At the relevant time when the chargesheet was issued to the petitioner, he was functioning as Area Manager of FCI District Office, Jabalpur. Another committee of three officers from District Office, Jabalpur also visited on the residential house of the petitioner at about 5:45 p.m. on 30.4.2014 at Jabalpur and pasted the said memorandum on the door of house. It has further been stated that as per Regulation 75 of FCI (Staff) Regulation 1971 every order, notice and other process made or issued under this regulation shall as far as possible be delivered or tendered to the employees concerned in person or through registered post. It has been further submitted that the Regulation 60A(1) of the said regulation provides for legal requirement for continuous of disciplinary proceedings with the issuance of the chargesheet while employee is in service which was validly done in this case. The petitioner himself has admitted that the chargesheet was issued on 30.4.2014. Thus, on this admission alone his case collapses. Respondents have further stated that to avoid the receipt of the said chargesheet, the petitioner proceeded on tour at Seoni without prior concurrence/approval of the competent authority. The petitioner himself has admitted that the chargesheet was issued on 30.4.2014. Thus, on this admission alone his case collapses. Respondents have further stated that to avoid the receipt of the said chargesheet, the petitioner proceeded on tour at Seoni without prior concurrence/approval of the competent authority. The petitioner during his service did not submit any representation to change the residential address and therefore, the chargesheet was served on the address given by the petitioner in the service book. Respondent had denied that the said chargesheet is issued with a malafied intention. It has been further stated that as the petitioner did not attend the departmental enquiry proceeding despite of issuance of various notices. Enquiry officer, therefore, concluded the disciplinary proceedings ex parte by following all due procedure. 6. The petitioner has filed the present petition without exhausting statutory alternate remedies which are available to the petitioner under the service Rules and therefore, the present petition is liable to be dismissed on the ground of availability of the alternate remedy. Respondents further stated that the high irregularities were noticed on part of the petitioner while working as Manager (Contract) at FCI, District Office Bhopal which were detected during audit and investigations carried out by higher offices. On the basis of findings of investigations a chargesheet dated 29.4.2014 was issued to him by FIC, Headquarters, which is self-explanatory. It is further submitted that it is the time prime responsibility of the duty of the Manager to submit proposals for approval to Area Manager which are as per the rules and rightful in nature which the petitioner failed to do so. Because of his inappropriate actions FCI had suffered financial losses. 7. The petitioner has filed the rejoinder to the said reply filed by the respondent. The petitioner had denied that the chargesheet was issued to the petitioner on the date of retirement i.e. on 30.4.2014. It has been further stated that the chargesheet was sent by E-mail on 30.4.2014 by the Regional Office, Bhopal at about 12:04 p.m. on the address of Food Corporation of India, Jabalpur addressed to the Manager(Vigilant) FCI, Jabalpur and received at Jabalpur Office after 12:04 p.m. with the directions to serve the same to the petitioner under proper dated acknowledgment in triplicate and forward the same to this Office through E-mail immediately. This mail could not be opened by Jabalpur Office and on request the mail was resent by Regional Office, Bhopal which was received by Jabalpur Office at about 13:51 p.m. As such since the order through e-mail is not served on the personal ID of the petitioner and therefore, the same cannot be treated as served to the petitioner. So far as dispatch of the order by the registered post is concerned, it has been stated that the said letter has been sent at the wrong address where the petitioner was not residing last and his latest residential address was well known the respondents. The committee members who visited the residence of the petitioner at about 6 p.m. on 30.4.2014 has pasted the order at the address other than that of the petitioner and not served at the last known address of the petitioner. The petitioner has further stated that the respondents themselves have admitted that the chargesheet was dispatch and sent by the speed post on 30.4.2014 to the resident of petitioner at Bhopal at about 22:39 p.m. much later after closure of the office. Since the entire exercise of serving the charge-sheet was done after the closure of the office, after the relieving of the petitioner in the afternoon on 30.4.2014 that too when the same has not been served to the petitioner on 30.4.2014, the question of serving the chargesheet to the petitioner does not arise. So far as, the proceeding ex parte in the enquiry against the petitioner is concerned, it is stated that the petitioner has already informed to the respondents his inability to attained the enquiry within short time. However, in spite of this the respondents have proceeded exparte against him. Learned counsel for the petitioner further submitted that he has not avoided the receipt of the order. It has been further stated that till 29.4.2014 no charge-sheet was issued to the petitioner as mentioned in the chargesheet. It has been further submitted that as per the gazette notification, the respondents are empowered to continue the departmental proceedings even after the retirement but the charge-sheet has to be issued before the retirement to the official. It has been further stated that till 29.4.2014 no charge-sheet was issued to the petitioner as mentioned in the chargesheet. It has been further submitted that as per the gazette notification, the respondents are empowered to continue the departmental proceedings even after the retirement but the charge-sheet has to be issued before the retirement to the official. It has been further submitted that in the instant case, the complaints were made against six Managers storage/contract, six Managers accounts and six Area Managers of M.P. Region who are associated in processing and passing the bills worth of Rs.11 crores and the chargesheet has been issued only to the petitioner malafidely for the reasons best known to the respondents and other seventeen Officers are left untouched. Thus, this action of the respondents in issuing the charge-sheet to the petitioner leaving all others who are actually responsible for making huge payments is a colourable exercise of powers for the reasons best known to the respondents. 8. The respondents had filed their counter affidavit/additional reply to the rejoinder submitted by the petitioner. Learned counsel for the petitioner argues that the chargesheet issued to the petitioner is illegal, arbitrary and is issued with the mala fide intention at the instant of respondent No.5. It is further submitted that the action is selective and only the petitioner has been single out of other six Area Manager who have not been issued even with the show cause notice. He further argues that the chargesheet dated 30.4.2014 was not served on the petitioner while he was in service. Learned counsel for the petitioner submits that the controversy is in short is that their were allegations of double payment of the transportation cost for transporting the food grains to the contractor Area Manager has only got the drawing and disbursing power. The role of the Manager is put the proposal to Area Manager and made the recommendation with which the Area Manager may agree or disagree. Once the Area Manager agrees/disagrees to the proposal made by the Manager then that the decision is solely of Area Manager and put it about no role to say about it. He further submits that the petitioner has no role to make the payment, the petitioner has only to put up his proposals for making the payment for transportation. Once the Area Manager agrees/disagrees to the proposal made by the Manager then that the decision is solely of Area Manager and put it about no role to say about it. He further submits that the petitioner has no role to make the payment, the petitioner has only to put up his proposals for making the payment for transportation. Drawing and disbursing i.e. power of making the payment solely lie in the domain of Area Manager. In such circumstances the petitioner being Manager, could not be in any manner be held responsible for the latches of Area Manager at the relevant time. After considering the entire service career of the petitioner, he was promoted as AGM vide order dated 8.5.2013. The petitioner is not being in good books of respondent No.5. The attitude of the respondent No.5 can, however be ascertained from the letter dated 9.5.2013 which is written to the Executive Director (West) by respondent No.5. This letter makes general kind of allegations against the petitioner, stating that the performance of the petitioner being Incharge of the Area Manager I/C Sagar on adhoc capacity his performance was not up to the mark. The private respondent without disclosing any complaints to the respondent authority against the petitioner tried to harm the petitioner. Respondent No.5 has been got trapped by the CBI on 22.3.2014. Thus, for not toeing illegal demands of the private respondent and the private respondents always tried to harm the petitioner and the present chargesheet is also result of his designs so as to anyhow harm the petitioner. He further argues that the chargesheet which is issued to the petitioner was not served on him during his service career and he is retired on 30.4.2014 and the chargesheet was served to the petitioner on 15.5.2014 i.e. after his retirement. He further submits that as per Regulation 60A(1) of the Regulations, the chargesheet has to be issued while the employees is in service and if the chargesheet is issued after retirement of the employee then no disciplinary enquiry can be initiated against him, as no relationship of employee and employer exists between the parties after the retirement of the employee. He further argues that mere issuance of the chargesheet will not fulfill the requirement of Regulation 60A(1) of the Regulation it has to be actually served on the employee. He further argues that mere issuance of the chargesheet will not fulfill the requirement of Regulation 60A(1) of the Regulation it has to be actually served on the employee. For the said purpose he relied on the judgment passed by the apex Court in the case of Union of India and others v. Dinanath Shantaram Karekar and others, reported in AIR 1998 SC 2722 . Learned counsel for the petitioner further argues that the chargesheet was never served on the petitioner. He further argues that the chargesheet was pasted by the respondents on a wrong address of the petitioner while he was in service. The petitioner has already informed to the respondent about his new address and it was not served on the petitioner through registered post. He further argues that the action of the respondents is also discriminatory. He further submits that the committee of the officers of the Zonal Office, Mumbai, in its report dated 24.4.2013 has stated that the double payment has been made by all the seven Area Managers of M.P. Region and action is required to be taken on them. However, instead of taking action on all the seven Area Managers, the private respondent in the capacity of General Manger of FCI, Bhopal made out the case against the petitioner. No case against any of the seven Area Managers was made. This action on the part of the respondent is colourable exercise of powers vested in the respondents. 9. On the other hand, learned counsel for the respondents argues that the chargesheet was issued to the petitioner on 30.4.2014 i.e. prior to his retirement, however, as he has avoided the service of chargesheet before the retirement and therefore, the same was served on the petitioner through registered AD as well as by pasting the same on the house of the petitioner. He further submits that the petitioner had never informed to the respondents about the change of his address and therefore, the same was served on the last known address of the petitioner. He denied that the chargesheet has been issued with mala fide intention or the same amounts to the discrimination. He further relies on the judgment passed by the apex Court in the case of State Bank of India v. Ram Lal Bhaskar and others, reported in 2012(I) MPWN 106=(2011)10 SCC, 249. 10. He denied that the chargesheet has been issued with mala fide intention or the same amounts to the discrimination. He further relies on the judgment passed by the apex Court in the case of State Bank of India v. Ram Lal Bhaskar and others, reported in 2012(I) MPWN 106=(2011)10 SCC, 249. 10. I have heard learned counsel for the parties and perused the record. From perusal of the record I found that the petitioner was appointed on the post of Peon in the year 1976 in the respondent/Food Corporation of India during his service career he was promoted to the various post ultimately to the post of Assistant General Manager on 8.5.2013. The petitioner stood retired on 30,4,2014 on attaining the age of superannuation. The respondents have issued a chargesheet to the petitioner alleging certain irregularities of the year 2011-12. However, the said chargesheet could not be served on the petitioner on 30.4.2014 and it was served to the petitioner on 15.5.2014 i.e. after his retirement. The Regulation 60A(1) provides for the procedure for disciplinary proceeding after the retirement. The said Regulation read as under : 1. Any disciplinary proceeding, if instituted by issue of charge-sheet while the employee was in service, whether before his retirement or during his re-employment shall, after the retirement of the employee, be continued and concluded by the authority by which it was commenced, in the same manner, as if the employee had continued in service. 2. Such proceeding after retirement should be completed expeditiously and within twelve months from the date of delivery of chargesheet to the charged official, subject to Court Orders, if any. 11. As per the said Regulation, the disciplinary proceeding, if instituted by issue of chargesheet while the employee was in service, whether before his retirement or during his reemployment, shall, after the retirement of the employee, be continued and concluded by the authority by which it was commenced, in the same manner, as if the employee had continued in service. Thus, as per the said regulation, the chargesheet is to be issued to the employee while he was in service. In the present case, admitting the charge-sheet was issued to the petitioner on 30.4.2014 i.e. prior to his retirement. But it was not served on the petitioner before his retirement. The apex Court in the case of Union of India and others (supra), has held as under : “10. In the present case, admitting the charge-sheet was issued to the petitioner on 30.4.2014 i.e. prior to his retirement. But it was not served on the petitioner before his retirement. The apex Court in the case of Union of India and others (supra), has held as under : “10. Where the disciplinary proceedings are intended to be initiated by issuing a chargesheet, its actual service is essential as the person to whom the chargesheet is issued is required to submit his reply and, thereafter, to participate in the disciplinary proceedings. So also, when the show cause notice is issued, the employee is called upon to submit his reply to the action proposed to be taken against him. Since in both the situations, the employee is given an opportunity to submit his reply, the theory of “Communication” cannot be invoked and “Actual Service” must be proved and established. It has already been found that neither the charge sheet nor the show cause notice were ever served upon the original respondent. Dinanath Shantaram Karekar. Consequently, the entire proceedings were vitiated”. 12. Thus as per the said judgment where the disciplinary proceedings are intended to be initiated by issuing a chargesheet, its actual service is essential as the person to whom the chargesheet is issued is required to submit his reply and thereafter, to participate in the disciplinary proceedings. In the present case as it has already been observed that the chargesheet was issued to the petitioner on 30.4.2014 but it was actually served on the petitioner on 15.5.2014 i.e. after his retirement which cannot be said to be a actual service of the chargesheet on the petitioner. In the present case, as the charge-sheet was not served to the petitioner prior to his retirement, therefore, it cannot be said to be served or issued on the petitioner. So far as, service of the chargesheet by the registered post as well as pasting the same on the house of the petitioner is concerned. It is found that although the petitioner has informed the respondents about change of the address but the respondents failed to serve the chargesheet on the address given by the petitioner. Thus, the respondents have no authority to continue the departmental enquiry against the petitioner after the retirement. It is found that although the petitioner has informed the respondents about change of the address but the respondents failed to serve the chargesheet on the address given by the petitioner. Thus, the respondents have no authority to continue the departmental enquiry against the petitioner after the retirement. The judgment passed by the apex Court in the case of State Bank of India (supra), relied on by the respondents does not help to the respondents because in that case, the Service Regulation are different. 13. Thus, the petition stands allowed. The chargesheet dated 29/30.4.2014 issued by respondent No.2 is hereby quashed. Consequently, the entire departmental enquiry initiated against the petitioner stands quashed.