Umesh Chandra Gupta (Inre 5099 S/S ... vs Food Corporation Of India, New ...
2018 Latest Caselaw 1811 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

									A.F.R.
 
Court No. - 4
 
Case :- SPECIAL APPEAL No. - 268 of 2016
 

 
Appellant :- Umesh Chandra Gupta (Inre 5099 S/S 1991)
 
Respondent :- Food Corporation Of India, New Delhi Thru. Its M.D. & 2 Ors.
 
Counsel for Appellant :- Dr. Ramsurat Pande
 
Counsel for Respondent :- Veena Sinha,Anurag Verma
 
Hon'ble Govind Mathur,J.

Hon'ble Irshad Ali,J.

(As Per Hon'ble Irshad Ali, J.)

1: Heard learned counsel for the parties.

2: The instant special appeal is preferred against the judgment and order dated 17.5.2016 passed by learned Single Judge in Writ Petition No.5099 (S/S) of 1991 (Umesh Chandra Gupta Vs. Food Corporation of India and others) and to allow the writ petition quashing the impugned orders dated 29.12.1990 and 16.5.1991 passed in a disciplinary proceedings initiated against the appellant.

3: Brief fact of the case is that the appellant/petitioner was granted appointment on the post of Assistant Grade-III on 23.6.1970. He was promoted on the post of Assistant Grade-II on 5.11.1971 in pursuance to an order of the Zonal Manager, Food Corporation of India.

4: The appellant/petitioner was served a charge-sheet on 4.10.1982 while posted at Rishikesh in District Dehradun. The appellant/petitioner submitted reply to the charge-sheet on 29.10.1982 denying the allegations levelled in the charge-sheet. After submission of reply to the charge-sheet, the inquiry was conducted.

5: The respondents issued another charge-sheet levelling the same charges on 4.8.1984 by appointing an Inquiry Officer to inquire into the allegations levelled under the charge-sheet. Several Inquiry Officers were appointed from time to time in conducting the inquiry but the inquiry proceeding could not be concluded.

6: The appellant/petitioner has again been issued a charge-sheet along with 4 other employees levelling allegation that he has attempted to misappropriate 42 bags of rice and the petitioner was placed under suspension on 31.3.1986.

7: The order of suspension dated 31.3.1986 was challenged before the Allahabad High Court in Writ Petition No.3319 of 1987. The Hon'ble Allahabad High Court quashed the order of suspension vide judgment and order dated 12.3.1987. At subsequent point of time, the inquiry proceeding initiated against the appellant/petitioner was ultimately dropped being found no evidence against him.

8: In regard to the second charge-sheet issued on 4.8.1984, Sri A.A. Kazmi was appointed as Inquiry Officer to conduct the inquiry at Lucknow. In the meantime, the appellant/petitioner was transferred from District Rishikesh to District Gorakhpur. The said order was modified subsequently whereby the appellant/petitioner was transferred at District Hapur. The respondent did not relieve the appellant/petitioner therefore, the appellant/petitioner could not join either at Gorakhpur or at Hapur.

9: The respondent issued another charge-sheet on 5.10.1989 levelling charges that the appellant/petitioner has not obeyed the order of transfer. Sri B.P. Singh, Assistant Manager appointed as an Inquiry Officer to inquire into to allegations levelled under the charge-sheet. The Inquiry Officer in the inquiry report has recorded finding that due to non relieving from District Rishikesh, the appellant/petitioner could not join at the transferred place in District Gorakhpur or in District Hapur and the Inquiry Officer did not find the charges to be proved levelled against the appellant/petitioner and inquiry report was submitted on 18.9.1990.

10: After service of the inquiry report upon the appellant/petitioner, he requested for the grant of time for submitting reply and thereafter, reply was submitted on 10.9.1990.

11: The respondent No.3, Senior Regional Manager passed an order on 29.12.1990 whereby major penalty of compulsory retirement was awarded to the appellant/petitioner. The order of punishment was challenged in appeal, which has also been dismissed vide order dated 16.5.1991. Challenging the aforesaid two orders dated 29.12.1990 and 16.5.1991, the appellant/petitioner filed Writ Petition No.5099 (S/S) of 1991 (Umesh Chandra Gupta Vs. Food Corporation of India and others), which was dismissed vide judgment and order dated 17.5.2016, which is assailed in the present special appeal.

12: Learned counsel for the petitioner made two fold submissions:

(i) The respondent while passing the impugned order dated 29.12.1990, has recorded no reasons to arrive on a conclusion to award the punishment.

(ii) The petitioner was not paid subsistence allowance and travelling allowance due to which he could not attend the proceeding of inquiry conducted at Lucknow, therefore, the entire inquiry proceedings vitiated in law, thus, cannot be termed to be valid inquiry.

13. He next submitted that the learned Single Judge while passing the judgment and order dated 17.5.2016, has nowhere considered the submissions advanced by the learned counsel for the petitioner as referred hereinabove, therefore, the learned Single Judge erred in law in passing the impugned judgment and order.

14. In regard to the submission advanced on the point of non-payment of subsistence allowance and travelling allowance due to which the disciplinary proceedings vitiated in law, he relied upon a judgment of the Hon'ble Supreme Court rendered in the case of Capt. M. Paul Anthony V. Bharat Gold Mines Ltd. & Another; (1999) 3 SCC 679.

15: On the other hand, learned counsel appearing on behalf of the respondents submitted that there is no illegality in concluding the disciplinary proceeding against the appellant/petitioner. He has been afforded full opportunity to defend his case and the order passed by the respondents does not suffer from any infirmity or illegality. The writ petition is a misconceived writ petition and after examining the entire material on record, the learned Single Judge has dismissed the writ petition, which does not call for interference by this Court in the present special appeal.

16: Having heard rival contentions of the learned counsel for the parties, we perused the material on record. On perusal of the impugned order, it is evident on the face of it that it does not record reasons to arrive on the conclusion for awarding the major penalty to the petitioner of compulsory retirement, therefore, due to non recording of reasons, the impugned order vitiated in law.

17: The law in this regard is very much settled that once a disciplinary authority is going to award major penalty to an employee, he has to record his reasons for arriving to the conclusion to award the punishment. Due to non recording of reasons, the impugned order suffer from apparent illegality and liable to be set aside.

18: In paragraph 32 of the writ petition, it is stated that the appellant/petitioner was not paid subsistence allowance due to which, he could not attend the proceeding of inquiry conducted at Lucknow. Reply to that has given in paragraph 24 of the counter affidavit and there is no denial to this effect.

19: Learned Single Judge while passing the impugned judgment has relied upon the judgment rendered in the case of State of Andhra Pradesh and others Vs. Chitra Venkata Rao; AIR 1975 SC 2151.

20: The judgment relied upon in passing the impugned judgment and order pertains to the question on the scope of interference under Article 226 of the Constitution of India. If no cogent reasons exist and the entire disciplinary proceedings vitiated due to non following the Principles of Natural Justice, it is always open to this Court to interfere in the matter and to pass appropriate order. Therefore, the ratio of the judgment referred by the learned Single Judge are not attracted on the facts and circumstances of the present case.

21: He further considered the judgment on the similar principles as has been laid down in the aforesaid judgment and thereafter, dismissed the writ petition. The learned Single Judge while passing the judgment and order under challenge has nowhere considered that the impugned order of compulsory retirement has been passed without assigning reasons to arrive on the subjective satisfaction to pass the impugned order nor has considered that the appellant/petitioner has not been paid subsistence allowance due to which he could not attend the proceeding of the Inquiry Committee and the Inquiry Committee submitted its ex-parte inquiry report without permitting the appellant/petitioner to participate in the inquiry conducted.

22: In view of the above settled proposition of law, as has been laid down by the Supreme Court in the case of Capt. M. Paul Anthony (Supra), paragraph 31, 32 and 33 are being quoted herein below:

"31. On joining Govt. service, a person does not mortgage or barter away his basic rights as a human being, including his fundamental rights, in favour of the Govt. The Govt., only because it has the power to appoint does not become the master of the body and soul of the employee. The Govt. by providing job opportunities to its citizens only fulfils its obligations under the Constitution, including the Directive Principles of the State Policy. The employee, on taking up an employment only agrees to subject himself to the regulatory measures concerning his service. His association with the Government or any other employer, like Instrumentalities of the Govt. or Statutory or Autonomous Corporations etc., is regulated by the terms of contract of service or Service Rules made by the Central or the State Govt. under the Proviso to Article 309 of the Constitution or other Statutory Rules including Certified Standing Orders. The fundamental rights, including the Right to Life under Article 21 of the Constitution or the basic human rights are not surrendered by the employee. The provision for payment of Subsistence Allowance made in the Service Rules only ensures non-violation of the right to life of the employee. That was the reason why this Court in State of Maharashtra vs. Chanderbhan struck down a Service Rule which provided for payment of a nominal amount of Rupee one as Subsistence Allowance to an employee placed under suspension. This decision was followed in Fakirbhai Fulabhai Solanki vs. Presiding Officer and it was held in that case that if an employee could not attend the departmental proceedings on account of financial stringencies caused by non-payment of Subsistence Allowance, and thereby could not undertake a journey away from his home to attend the departmental proceedings, the order of punishment, including the whole proceedings would stand vitiated. For this purpose, reliance was also placed on an earlier decision in Ghanshyam Dass Shrivastva vs. State of M.P.

32. The question whether the appellant was unable to go to Kolar Gold Fields to participate in the inquiry proceedings on account of non-payment of Subsistence Allowance may not have been raised before the Inquiry Officer, but it was positively raised before the High Court and has also been raised before us. Since it is not disputed that the Subsistence Allowance was not paid to the appellant during the pendency of the departmental proceedings, we have to take strong notice of it, particularly as it is not suggested by the respondents that the appellant had any other source of income.

33. Since in the instant case the appellant was not provided any Subsistence Allowance during the period of suspension and the adjournment prayed for by him on account of his illness, duly supported by medical certificates, was refused resulting in ex-parte proceedings against him, we are of the opinion that the appellant has been punished in total violation of the principles of natural justice and he was literally not afforded any opportunity of hearing. Moreover, as pleaded by the appellant before the High Court as also before us that on account of his penury occasioned by non-payment of Subsistence Allowance, he could not undertake a journey to attend the disciplinary proceedings, the findings recorded by the Inquiry Officer at such proceedings, which were held ex-parte, stand vitiated."

23. The provision for payment of subsistence allowance made in service rules only ensures non violation of the right to life of the employee. If an employee could not attend the departmental proceedings on account of financial stringencies caused by non-payment of subsistence allowance and thereby could not undertake a journey away from his home to attend the departmental proceedings, the order of punishment including the whole proceedings would stand vitiated. Therefore, the respondent has committed manifest error of law in not paying the subsistence allowance to the petitioner so that he may attend the proceeding of inquiry at Lucknow easily. The Inquiry Officer has failed to discharge his duties in consonance with the statutory provisions of law. The appellant/petitioner has been awarded punishment of compulsory retirement on the basis of ex-parte inquiry report submitted by the Inquiry Officer. The Inquiry Officer conducted the inquiry ex-parte at Lucknow. The appellant/petitioner was not paid subsistence allowance and salary, therefore, he was unable to attend the inquiry proceedings at Lucknow due to paucity of funds, therefore, the order of punishment is vitiated in law.

24: The law report placed by the learned counsel for the petitioner supports the submissions advanced in regard to the non-payment of subsistence allowance and travelling allowance to the appellant/petitioner due to which the entire disciplinary proceedings rendered to be illegal find support of the judgment of Hon'ble Supreme Court in the case of Capt. M. Paul Anthony (Supra).

25: On the foregoing reasons referred hereinabove and the law report relied upon by the learned counsel for the appellant/petitioner, the impugned judgment and order passed by the learned Single Judge dated 17.5.2016 vitiates in law and is hereby quashed. The Special Appeal succeeds and is allowed.

26: The impugned orders dated 29.12.1990 and 16.5.1991 are also not sustainable in law in view of the reasons recorded above and are set aside. The Writ Petition succeeds and is allowed.

27: The respondents are directed to reinstate the appellant/petitioner in service and to pay the entire consequential benefits to the appellant/petitioner within a period of 3 months from the date of production of certified copy of this order.

28. No order as to costs.

Order Date :- 2.8.2018

Gautam