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2018 DIGILAW 462 (ALL)

REKHA SINGH v. UNION OF INDIA

2018-02-21

PANKAJ MITHAL, SARAL SRIVASTAVA

body2018
JUDGMENT By the Court.—Heard Sri Anil Bhushan, Senior Council assisted by Sri Akhilanand Mishra who appears for the petitioner and Sri S.K. Mishra, learned counsel appearing for the respondents. 2. The petitioner was working as AG-II (Hindi) with the Food Corporation of India (for short ‘FCI’) at Delhi. She was subjected to a departmental inquiry for furnishing fake graduation mark-sheet. The disciplinary authority i.e. General Manager (Region), Delhi vide order dated 24.1.2012 imposed penalty of “Reduction in the time scale of pay of AG-II (Hindi) by one stage for a period of two years without cumulative effect”. 3. The Executive Director (North) Noida, U.P. of the FCI vide memorandum dated 27.3.2017 had proposed to enhance the aforesaid punishment and the petitioner was called upon to submit her explanation. 4. The aforesaid memorandum has been challenged by the petitioner by means of this writ petition. The writ petition was entertained on 16.11.2017 on the ground that the power of review is exercisable by the same authority who has passed the order and the review after four years of the order is not permissible. 5. The Court permitted the proceedings for enhancement of penalty to continue and the final decision was directed to be effective only after the decision of the petition. 6. The moment the said order was passed and communicated, the order of dismissal of the petitioner from service has been passed on the same day, in the evening, by the Executive Director (North) Noida. 7. The petitioner has moved application so as to challenge the same and since the aforesaid order has come into existence during the pendency of the petition, we permitted the parties to address on the validity of the said order as well. 8. In view of the aforesaid, not only the memorandum dated 27.3.2017 issued for enhancement of the penalty but the order dated 16.11.2017 enhancing the punishment to dismissal from service are under challenge in this petition. 9. Sri S.K. Mishra, learned counsel for the respondents has raised a preliminary objection that this Court has no territorial jurisdiction in the matter as she is posted in Delhi and the order of punishment was also passed against her at Delhi. 10. 9. Sri S.K. Mishra, learned counsel for the respondents has raised a preliminary objection that this Court has no territorial jurisdiction in the matter as she is posted in Delhi and the order of punishment was also passed against her at Delhi. 10. The petitioner in this petition is not challenging the order of punishment which was initially passed rather the memorandum dated 27.3.2017 for enhancement of punishment which is admittedly issued by the Executive Director (North) of the FCI from the Zonal Office situate in Sector 24, Noida, U.P. The final order enhancing the punishment has also been passed by the aforesaid Executive Director at Noida. The cause of action in this petition are the above two orders which have been passed by an authority at Noida in U.P. and, therefore, irrespective of the place of posting of the petitioner, part of cause of action for filing this petition clearly arose here in the State of U.P. The said orders, as such, are amenable to the territorial jurisdiction of this Court. 11. Accordingly, the objection raised on behalf of the respondents is bereft of merits and stands rejected. 12. On merit, Sri Bhushan has argued that the power of reviewing any order of punishment is vested in the Board of Directors of the FCI and the Executive Director has no authority in law to review the same. Secondly, the power of review cannot be exercised after four years of passing of the order. Lastly, the regulations provide that where the punishment imposed is sought to be enhanced it cannot be done except by an inquiry in the manner laid down in Regulations. 13. Sri S.K. Mishra refuted the above arguments on the ground that the powers of the Board stands delegated to the next higher authority that has passed the final order and that there is no limitation under the regulations for reviewing the order of punishment. The petitioner has been punished after due inquiry held in the manner laid down in the Regulations. 14. The parties are at consensus that the services of the petitioner are governed by the Food Corporation of India (Staff) Regulations, 1971. These Regulations vide Regulation 54 provide for minor and major penalties to be imposed upon the employees. The procedure for imposing the major penalties is provided in Regulation 58 and for review of such order under Regulation 74 of the Regulations. 15. These Regulations vide Regulation 54 provide for minor and major penalties to be imposed upon the employees. The procedure for imposing the major penalties is provided in Regulation 58 and for review of such order under Regulation 74 of the Regulations. 15. The order of punishment is appealable under Regulation 67 and, thereafter, is subject to review under Regulation 74. The power of review is technically exercised by the same authority that has passed the order but it is not so under the aforesaid Regulations. The Regulations provide for review by the higher authority i.e. Board. Therefore, the power of review prescribed under Regulation 74 of the Regulations is virtually analogous to that of revision. The Regulation 74 reads as under: “74. Review: (1) Notwithstanding anything contained in these regulations, the Board may, at any time either on its own motion or otherwise, call for the records of any inquiry and review any order made under these regulations, and (a) confirm, modify or set aside the order, or (b) confirm, reduce, enhance or set aside the penalty imposed by the order, or impose any penalty where no penalty has been imposed; or (c) Remit the case to the authority which made the order or to any other authority directing such authority to make such further inquiry as it may consider proper in the circumstances of the case; or (d) pass such other orders as it may deem fit, Provided that no order imposing or enhancing any penalty shall be made by the reviewing authority unless the employee concerned has been given a reasonable opportunity of making a representation against the penalty proposed and where it is proposed to impose any of the penalties specified in clauses (v) to (ix) of Regulation 54 or to enhance the penalty imposed by the order sought to be viewed to any of the penalties specified in those clauses; no such penalty shall be imposed except after an inquiry in the manner laid down in Regulation 58. (2) No proceedings for review shall be commenced until after: i) the expiry of the period of limitation for an appeal, or ii) the disposal of the appeal, where any such appeal has been preferred. (2) No proceedings for review shall be commenced until after: i) the expiry of the period of limitation for an appeal, or ii) the disposal of the appeal, where any such appeal has been preferred. (3) An application for review shall be dealt with in the same manner as if it were an appeal under these regulations (4) Powers similar to those specified in clause (1) above may be exercised by the Chairman, Managing Director, Zonal Manager and Regional Manager (Additional/Joint Manager) in respect of orders passed by authorities subordinate to them.” 16. The power of review is exercisable by the Board and the Board has been vested with the power to confirm, reduce, enhance or set aside the penalty imposed. Sub-clause (4) of Regulation 74 specifically lays down that the power of review as provided under sub-clause (1) of Regulation 74 may be exercised by the authorities specified in respect of orders passed by the authorities subordinate to them. In other words, an order passed by any authority under the Regulations can be revised by the higher authority specified. 17. The Zonal Manager is one of the Officers (now been designated as Executive Director) authorised under sub-clause (4) of Regulation 74 to exercise the power of review. 18. The initial order of punishment passed by the General Manager (Region), as such, is amenable to review by the Executive Director who is the higher authority specified. 19. The order passed by the General Manager (Region) Delhi has been reviewed by the Executive Director (Noida) who is admittedly a superior authority and an authority vested with the power of review. Thus, the submission that the memorandum dated 27.3.2017 or the order enhancing the punishment dated 16.11.2017 are without jurisdiction is misconceived and is not acceptable. 20. On a plain reading of Regulation 74, the power of review is with the Board which is exercisable by a competent authority at any time either on its own motion or otherwise. The use of phrase “at any time” in sub-clause (1) of Regulation 74 is crucial and indicates that there is no time limitation for exercising the said power. 21. Sri Anil Bhushan has pointed out sub-clause (2) of Regulation 74 to press that the exercise of power of review is beyond the period of limitation. 22. The use of phrase “at any time” in sub-clause (1) of Regulation 74 is crucial and indicates that there is no time limitation for exercising the said power. 21. Sri Anil Bhushan has pointed out sub-clause (2) of Regulation 74 to press that the exercise of power of review is beyond the period of limitation. 22. Sub-clause (2) of Regulation 74 only provides that the review shall not be commenced unless the period for filing the appeal has expired. The period of limitation, according to Regulation 70 for filing the appeal is 45 days from the date the copy of the order is delivered/supplied to the party concerned. The order of punishment is dated 24.1.2012. Therefore, the period of limitation for filing appeal against it must have expired long back in the year 2012 and it is admitted that no party has filed any appeal against it. 23. In view of the aforesaid, there was no hindrance for exercise of power of review after the expiry of limitation period of appeal. No other provision was placed before us which limits the exercise of power of review to any specified period. Therefore, we hold that the power of review contemplated by Regulation 74 can be exercised by the competent authority any time after passing of the order but not before expiry of limitation to file the appeal. 24. Now coming to the last limb of the argument that the prescribed procedure for enhancement of punishment was not followed, it would be important to refer Regulation 54 which provides for imposition of penalties. The said regulation provides for minor as well as major penalties. Clauses (i) to (iv) provide for minor penalties and clauses (v) to (ix) for major penalties. 25. Regulation 74(1)(d) as reproduced earlier provides that no order imposing or enhancing any penalty shall be made by the reviewing authority unless the employee concerned has been given opportunity of making representation against the penalty prosed and that where the proposal is to impose major penalty specified in clauses (v) to (viii) of Regulation 54 without an inquiry as laid down in Regulation 58. In other words, any order to enhance the punishment to that specified in clauses (v) to (ix) of Regulation 54 the procedure prescribed under Regulation 58 is supposed to be followed. 26. Regulation 58 provides for holding an inquiry. In other words, any order to enhance the punishment to that specified in clauses (v) to (ix) of Regulation 54 the procedure prescribed under Regulation 58 is supposed to be followed. 26. Regulation 58 provides for holding an inquiry. No inquiry procedure as per Regulation 58 has been followed for the purposes of enhancement of the punishment. 27. In view of the aforesaid, the impugned order dated 16.11.2017 stands vitiated for non compliance of clause (1)(d) of Regulation 74 read with Regulation 54, 58 and 59 of the Regulations. Accordingly, on this count, without disturbing the memorandum dated 27.3.2017 we quash the order dismissing the petitioner from service dated 16.11.2017 leaving it open to the respondents to proceed ahead and to pass a fresh order, if necessary, in accordance with law. 28. The writ petition is allowed.