Smt.Laxmi Tomar vs General Manager Food Corporation ...
2023 Latest Caselaw 3777 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 3
 

 
Case :- WRIT - A No. - 2953 of 2011
 
Petitioner :- Smt.Laxmi Tomar
 
Respondent :- General Manager Food Corporation Of India Lucknow And Anr.
 
Counsel for Petitioner :- S.K.Mehrotra
 
Counsel for Respondent :- Shikhar Anand
 

 
Hon'ble Rajan Roy,J.

Heard.

This petition was filed on 23.05.2011 by the petitioner challenging inter alia the order of punishment dated 26.04.2011 passed by the General Manager, Food Corporation of India, U.P. Region, Lucknow. No interim order was passed therein and the petitioner stood reverted to the post of AG-III(D). Further relief of being allowed to perform her duties was also sought. The petition was amended on 08.04.2013 and relief for reinstatement on the post of Assistant Grade-II (Depot) w.e.f. the date of her reversion to the post of Assistant Grade-III (Depot) under the impugned order as also to pay arrears of salary and her other dues, etc. were added.

By means of the impugned order, the petitioner has been reverted from the post of AG-II(D), on which she had been promoted by the order dated 07.11.1985, to the substantive post of AG-III(D) and period of her suspension i.e. from 14.07.2009 to 28.04.2011 was treated as period not spent on duty thereby disentitling her remaining salary for the said period which would also entail break in service affecting her post retiral dues.

The facts of the case, in brief, are that the petitioner was substantively appointed in Food Corporation of India at Lucknow, U.P. on the post of Assistant Grade-III (Depot) in 1979. The petitioner was the daughter of Brij Bihari Lal Nigam. She belongs to general caste, but was married to late K.S. Tomar who was a resident of Jaunsar area of erstwhile Uttar Pradesh now Uttarakhand. Jaunsaris i.e. the residents of the said area were notified as Scheduled Tribe vide Notification dated 24.06.1967, a copy of which has been placed by counsel for the petitioner before the Court and is on record. In the supplementary affidavit of the petitioner, it is mentioned that she got married to late K.S. Tomar while studying in Class IX. Prior to her appointment as AG-III(D), on 17.05.1977 she had applied for issuance of a caste certificate as belonging to Scheduled Tribe considering the fact that her husband belonged to Scheduled Tribe and accordingly the same was issued by the concerned authority, a fact which is not in dispute.

Learned counsel for the petitioner has referred to a decision of Hon'ble the Supreme Court which was in force at that time and it is reported in 1972 AIR (SC) 1840; N.E. Horo vs. Jahan Ara Jaipal Singh, wherein, it had been held by Hon'ble the Supreme Court at that time that even without invoking the doctrine of domicile which had been relied by the High Court respondent's marriage with late Shri Jaipal Singh who was a Munda having been approved and sanctioned by the Parha Panchayat of the Munda tribe it can well be said that she became a member of the Munda tribal community. The High Court had also held that she would be treated as a Scheduled Tribe and Hon'ble the Supreme Court approved the said decision of the High Court with the observation that it had not been shown any infirmity in the reasoning of the High Court on this point. It further observed that when a person, in the course of time, has been assimilated in the community it is somewhat difficult to comprehend how that person can be denied the rights and privileges which may be conferred on that community even though tribal by constitutional provisions. It was a matter arising out of election proceedings.

Be that as it may, the petitioner was appointed as Assistant Grade-III (Depot) and thereafter she was promoted to the next post of Assistant Grade-II (Depot) on 07.11.1985. On 22.02.1991 regular departmental proceedings were conducted against the petitioner on the charge of having obtained promotion as Assistant Grade-II (Depot) on the basis of a false caste certificate and she was reverted to the post of AG-III(D) at the initial scale of pay and was to be treated as general candidate with immediate effect vide order dated 29.09.1991. This was the penalty order. This order was put to challenge by the petitioner through Writ Petition No. 6936 (SS) of 1991 wherein an interim order was passed on 24.03.1992 and as, during pendency of the petition the penalty order dated 22.09.1991 was withdrawn by the opposite parties without prejudice to further action to be taken by the competent authority, the petition was dismissed as infructuous on 25.02.1993. Thereafter based on disciplinary proceedings a penalty of dismissal from service was imposed upon the petitioner vide order dated 10/13.07.2009. This dismissal order was challenged by the petitioner through Writ Petition No. 4797 (SS) of 2009 which was partly allowed vide judgment dated 12.08.2009. The dismissal order was quashed with a direction for the petitioner to be reinstated with all consequential benefits, however, with liberty to the opposite parties to take fresh action in accordance with law.

Disciplinary proceedings were again initiated against the petitioner on 14.01.2010 as per the Food Corporation of India (Staff) Regulations, 1971 (hereinafter referred as 'Regulations of 1971'). An enquiry was conducted against the petitioner wherein the petitioner did not participate as alleged by the opposite parties. She in fact submitted a response dated 11.11.2010, after submission of enquiry report where she denied the allegation of any misconduct having been committed by her. In fact, it was stated by her in her reply that she had never been guilty of any kind of misconduct charged against her in the statement of Article of Charge framed against her. She belonged to Nigam caste by birth and was married to late K.S. Tomar who was a member of Scheduled Tribe. It was a matter of common knowledge and understanding at the time when she joined the service that the women entering into their household are known by the caste and the religion of their inlaws by marriage. It is on the basis of above information and understanding that she was issued caste certificate in question on the basis of the correct facts declared by her without any concealment. There was no oblique motive, no misrepresentation of any kind of information and no object on her part to take advantage by making misrepresentation deliberately and to her knowledge. Had it been within her knowledge that caste is known in case of ladies by the incident of their birth and not by marriage, she would have been the last person to have obtained the caste certificate in question mentioning that she belonged to Scheduled Tribe. The caste certificate in question was issued to her and obtained by her in a bonafide manner based on the information and understanding prevalent at the time in question. All the facts were known to the authority deciding to appoint her as nothing was concealed by her at the inception of her career. Even the appointing authority had the impression at the time in question that she belonged to a Scheduled Tribe on account of her marriage and, therefore, she was accepted in service as a member of the Scheduled Tribe although by birth she was a member of Nigam community, therefore, she could not be charged with the misconduct with which she had been charged. She also stated in her reply that she was willing to participate but on account of her physical handicap, she was unable to do so. She also sought time to file detailed reply to the charge-sheet. The reply dated 11.11.2010 had been submitted after enquiry report dated 20.09.2010 had been submitted ex-parte. The charge-sheet issued to the petitioner was dated 14.01.2010. The proceedings were initiated on a complaint of one Lakhan Singh. The enquiry report dated 20.09.2010 is annexed as Annexure-CA5 along with counter affidavit. Copy of the enquiry report was served upon the petitioner on 08.12.2010 asking her to submit her response within seven days. The petitioner submitted her response on 28.01.2011. After considering her reply, the impugned order dated 26.04.2011 was passed imposing the punishment of reversion and also treating the period of suspension as not spent on duty as already referred.

The question herein is as to whether the petitioner committed any misconduct so as to entail a punishment such as the one imposed against her.

Disciplinary proceedings against the employees of the Food Corporation of India are regulated by the Regulations of 1971. As per Regulation 54 of the Regulations of 1971 notwithstanding anything contained in any other regulation and without prejudice to such action to which an employee may become liable under any other regulation or law for the time being in force, the following penalties may (for good and sufficient reasons and as hereinafter provided) be imposed on any employee of the Corporation. Thereafter, minor penalties and major penalties are mentioned. Reversion to the initial scale of pay on the post of AG-III(D) would qualify as a major punishment, it being reduction in rank entailing loss of salary also, apart from status. The procedure for imposing major penalties is prescribed in Regulation 58.

Counsel for the petitioner has relied upon sub-Regulations (11) and (14) of Regulation 58 to contend that this was not complied and the proceedings were conducted ex-parte. Regulation 58 (23) is relevant and it reads as under:

"(23) (i) After the conclusion of the inquiry, a report shall be prepared and it shall contain:

(a) the article of charge and the statement of the imputations of misconduct or misbehaviour;

(b) the defence of the employee in respect of each article of charge;

(c) an assessment of the evidence in respect of each article of charge;

(d) the findings on each article of charge and the reasons therefore.

Explanation: If in the opinion of the inquiring authority the proceedings of the inquiry establish any article of charge different from the original articles of charge, it may record its findings on such article of charge:

Provided that the findings on such article of charge shall not be recorded unless the employee has either admitted the facts on which such article of charge is based or has had a reasonable opportunity of defending himself against such article of charge.

(ii) The inquiring authority, where it is not itself the disciplinary authority, shall forward to the disciplinary authority the records of inquiry which shall include:

(a) the report prepared by it under Claus (i);

(b) the written statement of defence, if any, submitted by the employee;

(c) the oral and documentary evidence produced in the course of the inquiry'

(d) written briefs, if any, filed by the Presenting Officer or the employee or both during the course of the inquiry; and

(e) The orders, if any, may by the disciplinary authority and the inquiring authority in regard to the inquiry."

This provision lays down as to what would be contents of the enquiry report. Clause (a) thereof states that the article of charge and the statement of the imputations of misconduct or misbehaviour, therefore, the charge has to be based on an imputation of misconduct or misbehaviour.

The question herein as to whether the petitioner committed any misconduct or misbehaviour. Regulation 59 deals with the action on the enquiry report. Sub-regulation (4) of Regulation 59 provides that if the disciplinary authority having regard to its findings of the Enquiry Officer on all or any of the articles of charge and on the basis of evidence adduced during the inquiry, is of the opinion that any of the penalties specified in clause (v) to (ix) of Regulation 54 should be imposed on the Corporation employee, it shall make an order imposing such penalty. Against the aforesaid backdrop, when the Court peruses the charge against the petitioner contained in Annexure-1 to the letter dated 14.01.2010, it reads as under:

"STATEMENT OF ARTICLE OF CHARGE FRAMED AGAINST SMT. LAXMI TOMAR AG III(D) NOW AG II(D).

Said Smt. Laxmi Tomar AG III(D) now AG II(D) while posted and functioning under FCI District Lucknow failed to maintain absolute integrity and acted in a manner which is unbecoming of an employee of the Corporation in as much as he committed following misconduct:

Said Smt. Laxmi Tomar AG III(D) now AG II(D) had produced false certificate of caste at the time of her initial appointment in the year 1979 to the affect that she belongs to scheduled tribe, whereas she is Nigam by caste since birth. As per Ministry of Home Affairs Circular No. 35/1/72/RU(SC ST) dated 2.5.75, no person who was not a member of SC/ST merely because he or she had married a person belongs to SC/ST.

As such the said Smt. Laxmi Tomar, AG III(D) now AG II(D) procured appointment in the Food Corporation of India against a reserved post by producing false certificate of her caste.

Thus, said Smt. Laxmi Tomar AG III(D) now AG II(D), contravened Regulation 31, 32 & 32-A of FCI (Staff) Regulation 1971."

The charge against her was that she failed to maintain absolute integrity and acted in a manner unbecoming of an employee of the Corporation inasmuch as she committed the misconduct of producing false caste certificate at the time of initial appointment in the year 1979 to the affect that she belonged to Scheduled Tribe whereas she belonged to Nigam by caste since birth. As per Ministry of Home Affairs Circular dated 02.05.1975, no person who was not a member of Scheduled Caste/Scheduled Tribe by birth will be deemed to be a member of Scheduled Caste/Scheduled Tribe merely because he or she had married to a person belongs to Scheduled Caste/Scheduled Tribe, as such, Smt. Laxmi Tomar, AG-III(D) now AG-II(D) procured appointment in the Food Corporation of India against a reserved post by producing false certificate of her caste. The said Laxmi Tomar contravened Regulations 31, 32, 32-A of the Regulations of 1971. The allegation is, thus, of having produce false certificate of caste.

The Court has perused the enquiry report and does not find any evidence mentioned therein or any finding recorded based thereon that the petitioner had fabricated the caste certificate or had herself prepared the same. There is no such evidence or finding that she misrepresented before the concerned authorities or by connivance obtained such caste certificate. Caste certificates are issued by the concerned authorities after due verification about the caste status of an applicant. In fact, because the petitioner did not reply to the charges for the reasons mentioned in her subsequent reply dated 11.11.2010, the enquiry proceedings were held ex-parte, but even then the Enquiry Officer was obliged to apply his mind to the charge levelled against her, the evidence on record and record a finding in this regard. In her reply dated 11.11.2010, the petitioner has explained her position that there was no malafide or malintent on her part nor any misrepresentation. It was a bonafide action under the belief that having married a Scheduled Tribe person she acquired the caste of such Scheduled Tribe person. The Counsel for the petitioner relied upon the decision of Hon'ble the Supreme Court in the case of N.E. Horo (supra). She had also disclosed the name of her father at the time of her initial appointment and in the Cardex form which is annexed with the petition. In fact having got married in Class IX itself all her subsequent certificates mentioned her as Scheduled Tribe. In Class IX the petitioner would not be in a position to make such a manipulation.

No doubt the legal position is that a general category candidate who married a Scheduled Tribe does not acquire the status of a Scheduled Tribe and the law in this regard was clarified in the year 1996 in the case of Valsamma Paul and Ors. vs. Cochin University and Ors; AIR 1996 SC 1011 wherein the decision of Hon'ble the Supreme Court rendered earlier in the case of N.E. Horo (supra) was also considered.

Having perused the enquiry report, the Court does not find any such evidence of misrepresentation or fraud or falsehood on the part of the petitioner knowingly in procuring or submitting such a caste certificate which was issued by the competent authority on her application in the circumstances narrated hereinabove nor do I find any effort on the part of the Enquiry Officer to enquire/verify from the concerned authority which had issued the caste certificate dated 17.05.1977 or his higher authorities as to the circumstances in which the caste certificate was issued. There is no evidence that she manipulated the issuance of such caste certificate with malintent so as to constitute a misconduct. In this context, the Court may refer to Regulation 31 of the Regulations of 1971 which provides that every employee shall at all times maintain absolute integrity; maintain devotion to duty; conform to and abide by the provisions of the Act and the rules and regulations made thereunder and obey all lawful orders and directions which may from time to time be issued to him in the course of his official duties by any person or persons to whom he may be subordinate in the service of the Corporation. Based on the enquiry report, it is difficult to come to a conclusion that this regulation was violated by the petitioner for the reasons already mentioned hereinabove. Unless misrepresentation, concealment, fraud or deliberate falsehood on her part with intent to obtain employment was proved, this regulation would not be violated. There is nothing to show that this was proved.

Now, the Court may consider Regulation 32 which is also referred in charge-sheet. It provides that every employee shall serve the Corporation honestly and faithfully and shall endeavour his utmost to promote the interest of the Corporation. He shall show courtesy and attention in all transactions and not do anything which is unbecoming of a Corporation employee. For the reasons already discussed, no violation of this regulation is proved on the basis of material on record. There is no evidence of dishonesty or unfaithfulness on the part of the petitioner in this regard.

Regulation 32-A defines misconduct. This regulation has as many as 38 clauses and a note appended thereunder to the effect that the above instances of misconduct are only illustrative in nature and not exhaustive. Having gone through the said provisions carefully, the Court finds that no misconduct is proved on the part of the petitioner in the facts and circumstances of the case and the evidence on record for the reasons already mentioned earlier, none of the clauses is attracted. Counsel for the Food Corporation of India relies on Clause (4) of Regulation 32-A which relates to furnishing false information regarding name, age, father's name, qualification, ability or previous service or any other matter germane to the employment at the time of employment or during the course of the employment. The term false necessarily implies a malintent on the part of one giving false information. No such malintent has been proved on the part of petitioner in this regard as already discussed. In this context, even at the cost of repetition, the Court may once again point out the reply of the petitioner dated 11.11.2010 already referred extensively in the earlier part of the judgment which clearly shows that there was no malintent, but under a bonafide belief that on marriage her caste had become that of her husband that she applied for the caste certificate and she was issued the same. Even while entering employment, she had clearly disclosed the name of her father and any person having any knowledge of caste in our country, he would understand that the caste Nigam does not qualify as a Scheduled Tribe, therefore, Regulation 32-A (4) of the Regulations of 1971 cannot be said to have been violated based on the facts and evidence on record. The Disciplinary Authority ought to have considered these relevant aspects of the matter in the context of misconduct imputed upon the petitioner and what was the evidence available in this regard. A bonafide act bereft of malafide intent would not qualify as misconduct at least in the facts of this case.

Disciplinary Authority has not given any extensive reasoning in support of its decision to revert the petitioner by way of penalty and also to treat the period of suspension as not spent on duty, but has simply agreed with the findings of the Enquiry Officer. The enquiry report itself does not contain much of a discussion. Because the petitioner did not participate, for whatever reason, in the enquiry, therefore, Enquiry Officer has presumed the charges to be proved on account of her absence. There is hardly any discussion of the charge in the context of meaning of misconduct. The Disciplinary Authority on its part had not taken into consideration the reply of the petitioner dated 11.11.2010 while passing the order of punishment nor has he referred or considered the reply to the show cause notice dated 08.12.2010 which was dated 28.01.2011. He has simply accepted the enquiry report as it is without due and proper application of mind to the relevant aspects as discussed hereinabove.

There was a provision of appeal against the order of punishment which was not availed by the petitioner and thereafter there was a further provision of review before the Reviewing Authority which has also not been availed as the appeal itself was not filed, however, this does not persuade the Court to dismiss the petition on the ground of alternative remedy as the matter has remained pending since 2011, pleadings have already been exchanged and it has been argued extensively by counsel for the parties.

In view of the above discussion, imposition of punishment of reversion upon the petitioner under the Regulations of 1971 cannot be justified nor sustained. Moreover, the Court takes note of the fact that the petitioner's initial appointment has not been cancelled by the opposite parties, but, she has been reverted from the post of AG-II(D) to AG-III(D) and has been allowed to retire from the said post on 29.02.2012, therefore, obviously the opposite parties never intended to cancel her appointment.

However, one cannot loose sight of the fact that the legal position is that a woman belonging to general category, who marries a Schedules Caste or Schedules Tribe does not, based on such marriage, automatically acquire the status of Scheduled Caste or Scheduled Tribe, therefore, keeping this in view even though the punishment of reversion which has to be based on misconduct has not been sustained, the reversion simplicitor from the date of passing of the impugned order i.e., 26.04.2011 will meet the ends of justice and will balance the equities between the parties. Therefore, in exercise of jurisdiction under Article 226 of the Constitution of India, it is provided that the petitioner shall be treated to be reverted from the post of AG-II(D) to the post of AG-III(D) simplicitor i.e. not by way of punishment.

At this stage Mr. Mehndi Abbas Rizvi, counsel for the petitioner, submitted that the caste certificate dated 17.05.1977 issued by the competent authority was never cancelled nor did the opposite parties challenge the same before the Caste Scrutiny Committee in the light of Hon'ble the Supreme Court judgment in the case of Kumari Madhuri Patil Vs. Additional Commissioner, Tribal Development; 1994 (6) SCC 241, therefore, not only the punishment order is not sustainable but the reversion simplicitor as ordered by this Court is also not justified. This contention has been made only to be rejected. The matter would be referred to the Caste Scrutiny Committee only when there was a dispute on facts as regards the caste status of the petitioner. Petitioner has very fairly admitted to the fact that she was borne in a family of general category caste and got married to a Scheduled Tribe, only based on this, she was under a mistaken belief that she had acquired the status of a Scheduled Tribe. There being no dispute on facts, there is no reason as to why this Court should refer the matter to the Caste Scrutiny Committee especially when the legal position is very well settled in view of the decision of Hon'ble the Supreme Court in Valsamma Paul and Ors. (supra) and various other decision on this subject. The contention is rejected.

As regards the period of suspension which has been treated as period not spent on duty, considering the fact that no misconduct has been proved on the part of the petitioner, it would be unreasonable to treat this period as not spent on duty. It is, therefore, provided that this period shall be treated as spent on duty, but without remaining salary for the said period of suspension in the peculiar facts and circumstances of this case as noticed hereinabove.

Subject to above, punishment order dated 26.04.2011 shall stand quashed.

Post retiral dues of the petitioner shall now be recalculated in the light of the aforesaid treating the period of suspension as spent on duty and fresh orders shall be passed accordingly. It the petitioner is entitled to any arrears of pension or other post retiral dues, the same shall be released at the earliest in accordance with Rules within two months.

In the circumstances no recovery of the salary and other emoluments already paid to the petitioner while she was working as AG-II(D) would be made by the opposite parties as she had performed the duties of the said post and there was no misrepresentation, concealment or fraud on her part.

The petition is allowed in part.

[Rajan Roy, J.]

Order Date :- 7.2.2023

Santosh/-